# Brief for the United States — Wilson v. Shaw

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United States
- **Published:** January 1, 1907
- **Citation:** 204 U.S. 24

## Text

Oe ‘ie a tout
‘ FILED.
OCT 27, 1906

Ae bh beck gra JAMES He McKENN
No.438, -———

nine Sepread Gourtaf te ait Sites

_ OcTOBER Tee 1906,

WARREN B. Witsow, ARPELLANT

LESLIE at: SHAW, Swicnerabr’ OF THE ‘Treasenr,
APPELLEE. ;

: ce ee h "
4 ra .

APPEAL From THE COURT OF APPEALS FOR, THE DISTRICT:
' OF COL LUMBLA,. S

BRIEF FOR THE catia STATES.

Inthe Supreme Gourt of the United States,

OcrospeR TERM, 1906.

Warren B. WILSON, APPELLANT,
Vv.
Lesuiz M. SHaw, SECRETARY OF THE
TREASURY, APPELLEE.

No. 43.

APPEAL FROM THE COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA.

BRIEF FOR THE UNITED STATES.

This bill was filed by the appellant to restrain
the Secretary of the Treasury of the United States
from paying out certain moneys to the Republic of
Panama and the New Panama Canal Company,
and also from issuing any bonds or borrowing any
money or issuing any warrants for the payment of
the expenses of the construction of the Panama
Canal, the bill alleging that the act of June 23,
1902 (32 Stats., 481), to provide for the construc -
tion of a canal connecting the waters of the Atlan-
tic and Pacific oceans has not been complied with,
and is unconstitutional. The Republic of Panama

and the New Panama Canal Company are also
11677—06—1

named as defendants, but service was had only on
the Secretary of the Treasury.

An order of the supreme court of the District
of Columbia sustaining a demurrer filed by the
Secretary was affirmed by the court of appeals,
and this appeal was thereupon taken.

I.

Complainant is without right to sue.
The allegation of paragraph 1 of the bill is:

That he is the owner of property of the
United States of America, subject to taxa-
tion by the United States of America, and a
taxable inhabitant of said United States of
America.

There is no averment that he pays to the United
States any taxes whatever. But if he is a tax-
payer he is not entitled to bring such a suit unless
he shows some direct and special injury to himself
above that suffered by others.

Grant v. Cooke, 7 D. C. Rep., 166;

State v. Thorson (S. D.), 33 L. R. A., 584;

1 Beach, Mod. Eq. Juris., secs. 641-642;

1 High on Injunction, sec. 9;

Georgetown v. Alex. Canal Co., 12 Pet.,
91, 99.

Furthermore, we submit that there is a distine-
tion between the interest of a taxpayer in money
of a State or county raised by direct taxation and
the interest of the compiainant in the sums here
appropriated by Congress.

- Re aes

In Miles Planting Company v. saisiosed (5 D.C.,
Apps., 147) the court said:

The power of Congress to pay bounties to
manufacturers or producers in order to en-
courage the manufacture or production of
any article has never been passed upon by
the courts. By the very nature of Federal
taxation and appropriations of public money,
questions respecting their validity are very
difficult to be raised. There is no simple
mode of challenge, as is the case in the
States, where the taxpayer, having a direct
interest, can invoke relief through injune
tion if need be.

Il.

The payments sought to be enjoined having been
made and thirty million dollars in bonds issued, of
which the court will take judicial notice, thisattempt
to restrain payment is largely a moot question,
which the court will not consider.

Mills v. Green, 159 U.S., 651.
American Book Company v. Kansas, 193
U.S8., 49, 52.

Cheong Ah Moy v. United States, 113 U.8.,
216.

Ill.

Title to the canal strip having been acquired,
this suit in effect seeks to restrain the Government
from improving its property. The United States
is therefore a necessary party.

4

It has not consented to be sued and can not be
sued without its consent.

Belknap v. Schild, 161 U.8., 10.

International Supply Company v. Bruce,
194 U. 8., 601.

Oregon v. Hitchcock, 202 U. 8., 60.

IV.

That this court will not attempt to enjoin the
enforcement by the Executive of a statute simply
because it is alleged to be unconstitutional *s too
well established to call for argument.

In Mississippi v. Johnson (4 Wall., 475), which
was an attempt to restrain President Johnson from
carrying out the provisions of the reconstruction
acts, this court said (p. 498) :

The single point which requires consider-
ation isthis: Can the President be restrained
by injunction from carrying into effect an
act of Congress alleged to be unconstitu-
tional? * ° *

Very different [from cases reviewed where
mandamus issued against secretaries to com-
pel them to do a merely ministerial act] is
the duty of the President in the exercise of
the power to see that the laws are faithfully
executed, and among these laws the acts
named in the bill. * * * The duty thus
imposed on the President is in no just sense
ministerial. It is purely executive and
political.

An attempt on the part of the judicial

5

department of the Government to enforce
the performance of such duties by the Pres-
ident might be justly characterized, in the
language of Chief Justice Marshall, as ‘‘an
absurd and excessive extravagance.”’

It is true that in the instance before us
the interposition of the court is not sought
to enforce action by the Executive under
constitutional legislation, but to restrain
such action under legislation alleged to be
unconstitutional. But we are unable to
perceive that this circumstance takes the
case out of the general principles which for-
bid judicial interference with the exercise
of Executive discretion. .

And said Judge Cooley, delivering the opinion of
the court in Sutherland v. The Governor (29 Mich.,
320, 329) :

Were the courts to go so far, they would
break away from those checks and balances
of Government which were meant to be
checks of cooperation, and not of antago-
nism or mastery, and would concentrate in
their own hands something at least of the
power which the people, either directly or
by the action of their representatives, de-
cided to entrust to the other Departments
of the Government.

The questions presented are for political and not
judicial determination.

In Georgia v. Stanton (6 Wall., 50) an injune-
tion was sought to restrain the Secretary of War

6

and others from carrying out the provisions of the
reconstruction acts, but tiis court said (p. 77) :

That these matters, both as stated in the
body of the bill and in the prayers for re-
lief, call for the judgment of the court upon
political questions, and upon rights not of
persons or property, but of a political char-
acter, will hardly be denied. For the rights
for the protection of which our authority is
invoked are the rights of sovereignty, of
political jurisdiction, of government, of cor-
porate existence as a State, with all its con-
stitutional powers and privileges. No case
of private rights or private property in-
fringed, or in danger of actual or threatened
infringement is presented by the bill, in a
judicial form, for the judgment of the court.

And in Mississippi v. Johnson (supra) the court
further said (p. 500) :

The Congress is the legislative department
of the Government; the President is the
executive department. Neither can be re-
strained in its action by the judicial depart-
ment; thongh the acts of both, when per-
formed, are, in proper cases, subject to its
cognizance.

The impropriety of such interference will
be clearly seen upon consideration of its
possible consequences.

Suppose the bill filed and the injunction
prayed for allowed. If the President refuse
obedience, it is needless to observe that the
court is without power to enforce its proc-

—" |

7

ess. If, on the other hand, the President
complies with the order of the court and re-
fuses to execute the acts of Congress, is it
not clear that a collision may occur between
the executive and the legislative depart-
ments of the Government? May not the
House of Representatives impeach the Presi-
dent for such refusal? And in that case
could the court interfere in behalf of the
President, thus endangered by compliance
with its mandate and restrain by injunction
the Senate of the United States from sitting
as a court of impeachment? Would the
strange spectacle be offered to the public
world of an attempt by this court to arrest
proceedings in that court?

These questions answer themselves.

Obviously the present case is not one in which
the performance of a purely ministerial act may
be controlled by the court. In Decatur v. Spaulding
(14 Pet., 497, 515), Chief Justice Taney said:

The head of an executive department of
the Government, in the administration of
the various and important concerns of his
office, is continually required to exercise
judgment and discretion. He must exer-
cise his judgment in expounding the laws
and resolutions of Congress, under which
he is, from time to time, required to act. If
he doubts, he has a right to call on the At-
torney-General to assist him with his coun-
sel; and it would be difficult to imagine why
a legal adviser was provided by law for the

11677—06—z

heads of departments, as well as for the
President, unless their duties were regarded
as executive, in which judgment and dis-
cretion was to be exercised.

8

¥

The treaty with the Republic of Panama com-
plies with the Spooner Act, if such compliance
is necessary.

It is contended by appellant that the act of
Congress of June 28, 1902 (32 Stat., 481), making
an appropriation for the purchase of the canal
strip ‘‘from the Republic of Colombia,”’ did not
authorize its acquisition from the Republic of
Panama.

We submit that all Congress wanted was the
control of a particular strip of ground and a satis-
factory title to specified property. It was not of
any importance to Congress from whom it obtained
these, provided it got a good title to them, any
more than such a thing would be of importance to
any other purchaser.

What would a business man think of an agent
sent to buy a farm from Smith for so much money
who should let the chance go by and report to him
that he did not buy the farm because he found that
he would have to buy from Jones, to whom the title
had been transferred, altho Jones was quite willing
to sell at the price named? He would never again
act as that business man’s agent.

No one can read the treaty with the Republic of

Panama without perceiving that the President and
the Senate understood that it was a compliance
with the Spooner Act concerning a treaty with
Colombia. |

Even the language of the treaty follows the lan-
guage of the act. Thus section 2 of the act author-
izes the President to acquire from the Republic of
Colombia ‘‘ perpetual control of a.strip of land.”
Article II of the treaty grants to the United States
‘in perpetuity the use, occupation, and control of
a zone of land.”’

Section 2 of the act provides for ‘‘ the right to
use and dispose of the waters thereon, and to ex-
cavate, construct, and to perpetually maintain,
operate, and protect thereon a canal,’ ete. Ar-
ticle IT of the treaty grants the right to the land
for the ‘‘construction; maintenance, operation,
sanitation, and protection of said eanal.’’

Article VIII of the treaty grants to the United
States the reversionary and other rights of Panama
in the property.of the New Panama Canal Com-
pany and Panama Railroad Company, which woulé
not have been done except in contemplation of the
proposed purchase of that property by the United
States.

Article X exempts from taxes ‘the canal, the
railways, and auxiliary works, tugs, and other
vessels employed in the work of the canal, store-
houses, workshops, offices,’ ete., which was a

10

promise to and for the United States evidently in
contemplation that all these things were to belong
to the United States after purchase from the com-
pany. Article XXII of the treaty expressly speaks
of ‘‘the canal, works, property, and rights held
by said companies under said concessions or other-
wise, and acquired by the United States from or
through the New Panama Canal Company,”’ and
the same article speaks further of the ‘*consum-
mation of the contemplated purchase by the United
States from the New Panama Canal Company.”

It can not be doubted that the property and
rights acquired or to be acquired by the United
States signified in the minds of the President and
the Senate the property and rights already acquired
or about to be acquired in pursuance of the Spooner
Act.

The treaty and all of its provisions would be
meaningless if it had not been understood that,
notwithstanding the change of sovereignty from
Colombia to Panama, the President remained au-
thorized by the Spooner law to acquire perpetual
control of that strip of land and the rights and
property of the canal company, and to thereafter
proceed to construct the canal.

We thus have the opinion of the President and
Senate, engaged in the solemn business of making
a public treaty, in confirmation of these views.

The President and the Attorney-General had it
in their power to ask Congress, with every prospect

RENDER CM Gn ete Siamese os i nikita ak Mee sees ot

11

of a favorable reception of such request, to amend
the Spooner law had they believed it necessary or
even useful to do so. Congress itself was fully
aware of the situation. Can it be that those who
voted for the Spooner Act and for the treaty with
Panama and for the act of April 28, 1904, were all
indifferent to the successful execution of the pro-
ject?) Anamendment of two lines would have suf-
ficed, and yet no one deemed it necessary to alter
the Spooner Act.

This court has frequently affirmed the principle

that statutes should be given areasonable construe -

tion and application. Thus, in United States v.

Kirby (7 Wall., 482, 486-487) , the court said:

All laws should receive a sensible con-
struction. General terms should be so lim-
ited in theirapplication as not to lead toin jus-
tice, oppression, or an absurd consequence.
It will always, therefore, be presumed that
the legislature intended exceptions to its
language, which would avoid results of this
character. The reason of the law in such
cases should prevail over its letter.

Again, in Blake v. National Banks (23 Wall.,
307, 320) :

It is impossible to believe Congress in-
tended to make this discrimination. It is
entirely unreasonable, and is not in harmony
with the well-known views of Congress on
the subject.

TOE CINEREA Te! ee ees

SATS See aun rseenerne:

12

Also, in Law Ow Bow v. United States (144 U.S.,
47, 59):

Statutes should receive a sensible construe -
tion, such as will effectuate the legislative
intention, and, if possible, so as to avoid an
unjust or an absurd conclusion.

See also In re Chapman (166 U.8., 661, 667).
So in Bate Ref. Co. v. Sultsberger (158 U.S.,
1, 37):

Undoubtedly the court, when endeavoring
to ascertain the intention of the legislature,
may be justified, in some circumstances, in
giving weight to considerations of injustice
or inconvenience that may arise from a par-
ticular construction of a statute.

In Chesapeake and Potomac Tel. Co. v. Manning
(186 U. 8., 245) :

But it is well settled that the courts
always presume that the legislature acts
advisedly and with full knowledge of the
situation. Such knowledge can be acquired
in other ways than by the formal investiga-
tion of a committee, and courts can not
inquire how the legislature obtained its
knowledge.

And again in Collins v. New Hampshire (171
U.S8., 30, 34):

In whatever language a statute may be
framed, its purpose must be determined by
its natural and reasonable effect.

And in Knowlton v. Moore (178 U.S., 41, 77): |

We are, therefore, bound to give heed to
the rule that where a particular construction

3 . ae = aaeiee _ |

13

of astatute will occasion great inconvenience
or produce inequality and injustice, that view
is to be avoided, if another and more reason -
able interpretation is present in the statute.

And see Jnterstate Commerce Commission v. Baird
(194 U.S., 38).

The spirit as well as the letter of a statute
must be respected, and where the whole
context of the law demonstrates a particu-
lar intent in the legislature to effect a cer-
tain object, some degree of implication may
be called in to aid that intent. (Durousseau
v. United States, 6 Cranch, 308, 314.)

Where the construction of the language
of a statute is doubtful, courts will always
prefer that which will confirm rather than
destroy any bona fide transaction or title.
The intention and policy of the enactment
should be sought for and carried out. Courts
should never indulge in nice grammatical
criticism of prepositions or conjunctions in
order to destroy rights honestly acquired.
(Griffith et al. v. Bogert et al., 18 How.,
158, 163.)

And it is well settled that, in interpreting
a statute, the court will not look merely to
a particular clause in which general words
may be used, but will take in connec-
tion with it the whole statute (or statutes
on the same subject) and the objects and
policy of the law, as indicated by its various
provisions, and give to it such a construe -
tion as will carry into execution the will of
the legislature as thus ascertained, accord -
ing to its true intent and meaning.

a

14

Neither will the court, in expounding a
statute, give to itaconstruction which would
in any degree disarm the Government of a
power which has been confided to it, to be
used for the general good—or which would
enable individuals to embarrass it in the
discharge of the high duties it owes to the
community—unless plain and express words
indicated that such was the intention of the
legislature. (Brown v. Dushesne, 19 How.,
183, 194-195.)

The duty of the court, being satisfied of
the intention of the legislature, clearly ex-
pressed in a constitutional enactment, is to
give effect to that intention, and not defeat
it by adhering too rigidly to the mere letter
of the statute. or to technical rules of
construction. * * * We ought, rather,
adopting the language of Lord Hale, to be
‘‘eurious and subtle to invent reasons and
means ’”’ to carry out the clear intent of the
law-making power when thus expressed.
(Oates v. National Bank, 100 U. 8., 239,
244.)

The prominent thought in these quotations is
that when the lawmakers pass a law to accomplish
a certain object the courts are to keep in mind the
object to be accomplished, and so read the act as
not to defeat but to further the accomplishment of
the object in view.

If the controlling and important thing in the
minds of Congress was to negotiate with Colom-
bia, for the sake of dealing with Colombia, instead

Ce ee ee ee ee eT Cee hy

ee

15

of to acquire the canal strip for the purpose of
building a canal on it, then it has had ample time
to express its disapproval of the action of the Ex-
ecutive, of which it was well aware. It has done
nothing of the kind. On the contrary, it past the
act of April 28, 1904 (33 Stat., 429), authorizing
the President, upon the acquisition of the prop-
erty, to pay to the Panama Republic $10,000,000,
as stipulated by article 14 of the treaty with that
Republic, to take possession of the canal strip,
provided that this payment should be made in lieu
of the indefinite « riation made in the third
section of the Sj) Act, and also provided for
the temporary gove»-.nent of the Canal Zone.

That act said that ‘‘upon the acquisition of the
property of the New Panama Canal Company”’
certain things should be done. Upon what aequi-
sition except that authorized by the Spooner law?
The President is authorized to take possession of
lands necessary or convenient for the construction,
ete., of the canal. What construction except that
authorized by the Spooner Act? And it speaks of
the construction of the canal as already provided
for.

{n short, the act of 1904 fully confirmed the
treaty with Panama and manifestly sanctioned the
negotiations, known to all the world, which had
just resulted, five days before the approval of the
law, in the purchase of the company’s property by
the United States and payment therefor, and sanec-

_ _ ad SOLE + CNET he *j tke I

16

tioned as well the payment of the specific amount
of $10,000,000 in lieu of the indefinite appropria-
tion made for the same purpose by the Spooner
Act.

Further, it is a well settled principle that the
interpretation of a statute by executive officials
whose business it is to act under it will not be dis-
turbed by the court except in cases in which the
proper interpretation is free fromdoubt. Itis need-
less to dwell upon the utility and wisdom of this
principle. The obviously disastrous consequences
of undoing the work of the executive branch of the
Government are recognized by the court.

It is needless to say that it is but seldom that
the executive officers act in one way when there is
no doubt that the law intends a different course.
Nor need it be added that the application of this
useful principle is especially to be made when the
executive officer who has acted is the Chief Magis-
trate and when his action has been deliberate and
based upon the opinion of the chief law officer of
the Government.

While theoretically possible it is hard to believe
that such action upon such advice would be con-
trary to the law when the proper interpretation of
the law was not a matter of ayy doubt.

The construction given to a statute by
those charged with the duty of executing it
is always entitled to the most respectful con -

sideration and ought not to be overruled
without cogent reasons. The officers con-

PERILS! IN CAINS a DR POR GAR i RE RAE ISIS ICE BO cape PY TE ACY — |

cerned are usually able men and masters of
the subject. Not unfrequently they are the
draftsmen of the law they are afterwards
called upon to interpret.

U.S. v. Moore, 95 U.8., 760, 763.

Heath v. Wallace, 188 U.§8., 573, 582.

The principle that the contemporaneous
construction of a statute by the executive
officers of the Government, whose duty it is
to execute it, is entitled to great respect,
and should ordinarily control the construe -
tion of the statute by the courts, is so firmly
embedded in our jurisprudence that no
authorities need be cited to support it. On
the faith of a construction thus adopted
rights of property grow up which ought not
to be ruthlessly swept aside unless some
great public measure, benefit, or right is
involved, or unless the construction itself
is manifestly incorrect. (Pennoyer v. Me-
Connaughy, 140 U.S., 1, 23.)

While, of course, no practice of a Depart-
ment can nullify an act of Congress, yet
such practice, if uniform and long con-
tinued, is a matter worthy of consideration
in determining its construction. So many
rights, it may be presumed, have been cre-
ated in reliance upon it that the courts will
hesitate to decide that the construction
thus practica..y asserted is erroneous, and so
overthrow all the titles depending thereon.
(Orchard v. Alexander, 157 U. 8., 372, 383.)

Counsel contends that nothing but an actual
cession of the strip would comply with the Spooner

SET AOR RE ON,

nate e as

18

Act. But section 2, upon which he relies, obvi-
ously does not contemplate a complete cession. It
says: ‘* That the President is hereby authorized to
acquire * * * perpetual control’? of the strip,
and the treaty, Article II, grants to the United
States ‘tin perpetuity the use, occupation, and
control”’ of the Canal Zone. This amounts toa
complete cession, and Article III grants all the
rights, powers, and authority of complete sover-
eignty ‘‘to the entire exclusion of the exercise by
the Republic of Panama of any such sovereign
rights, power, or authority.”’

The contention that, as all other grants in the
treaty are expressly made perpetual, the grant in
Article III is temporary because not limited in
time is at least singular. Obviously, all the grants
were for the same purpose and were to have the
same duration.

It is said we have not complied with the law
because the cities of Panama and Colon are not
included in the zone. The city of Colon is about
one-fourth of a mile across—a very insignificant
place in extent—and we get the zone, *‘ extending
from the Caribbean Sea to the Pacific Ocean,”
with this little city omitted, and, on the other end,
Panama, which has a larger population, but is very
compact and occupies a very small space. The
zone is much wider than the Spooner Act requires,
so that there seems to be a substantial compliance
with the law. Congress did not undertake to say
that there should not be a little indentation at

PT RR NAO eS Lt RO MY Sara OAR 8 ay Retyariygacr veg YoReg

19

either end for the cities of Panama and Colon.
Panama is the capital of the Republic and was the
capital of the province, and was ne+ intended by
Congress to be included within the zone.

It is said the grant in the treaty is void because
the zone is not defined; that it might be at various
places, and we could not arrest and try a man for
crime there, because we would not know whether
he was in or out of the zone.

This is a hypereritical objection. The treaty
contains numerous indications that the zone was
to be along the canal that the French company had
been building, and at or near the cities of Panama
ani Colon, because the treaty speaks of them—
excepts them—authorizes us to buy from the com-
pany—every indication that it was to be along or
near the old French company’s canal, which is
perhaps one-third finished. But that is not all.
The President executes the laws. This treaty is
the law, and he is bound to execute it. Panama
being interested, even if he could not execute it
altogether without consulting Panama, yet with
the consent of that Republic he could proceed to
delimit and mark off the zone. He is the one au-
thorized to locate the canal, and the zone extends
so many miles on either side of it. The locating
of the canal would fix the zone. He has author-
ized the governor of Panama to locate the bound-
aries of the zone, and the governor has delimited
the zone, with the cooperation of the Executive of
Panama. They do know where it is, and they do

.._. RC ERY TEP ILEE YEO: wey PONT Rn.

20

know where to arrest criminals, and they do arrest,
try, and punish them. So, undoubtedly, the treaty
intended the zone to be delimited in some way,
There is a way under the treaty to render the zone
certain, and it can yet be rendered certain, if it has
not been. The grant is therefore not void.

Grants of land to be thereafter identified and
made certain have frequently been upheld. (uth-
erford v. Greene, 2 Wheat., 196; Lessieur v. Price,
12 How., 59.)

We submit, moreover, that the treaty does not
stand or fall upon a determination of the question
whether by it there was such an acquisition of ter-
ritory as the Spooner Act contemplated. It is still
a treaty and the law of the land as much as is the
Spooner Act. It is as familiar a principle that
treaties may make changes in statutory laws as
that statutes may abrogate treaties. (The Cherokee
Tobacco, 11 Wall., 616, 621.) With the treaty so
clearly sanctioned by Congress in the act of 1904,
the whole transaction from beginning to end seems
to us so preeminently proper in every respect that
the contentions of appellant appear at least aston -
ishing.

As we have already seen, every act of Congress
should receive a reasonable interpretation and
should be interpreted to further instead of defeat
its purpose, but this particular act especially should
receive a very broad interpretation, for the reason
that it dealt with a very broad, complicated, and

21

delicate subject. It concerned a great interoceanic
highway which had been dreamed of for centuries.
It concerned a highway on a foreign isthmus. It
concerned a treaty with a foreign sovereignty over
the Isthmus. It concerned an appropriation re-
quiring the consent of both Houses of Congress
and a treaty requiring the concurrence of our
Senate and a foreign congress. It concerned a
purchase from a company whose title was sup-
posed to be very complicated and to involve a
long series of bond issues, bankruptey proceed -
ings, and other like matters. Could it be sup-
posed that Congress, in dealing with such a
delicate subject, or such numerous delicate sub-
jects, expected to have some little complication
that might arise defeat such a scheme for the
benefit of the country and the world at large?
May it not be supposed, on the contrary, that Con-
gress, in passing the law, rose to the height from
which difficulties and uncertainties and complica -
tions might in a general way be anticipated as
natural to occur? And is it not reasonable to ask
the court to rise to a similar height and ignore the
absolutely unessential fact that the sovereignty
from which we obtained the strip changed, so that
it became necessary to purchase from a new sov-
ereignty over the same strip of territory instead of
the original or former one?

Woh RUE AWGN T Re OT YUBA i ley oh Reali

Nay Hee ea Tar

LAM aie Sst 2 RTS TNA Ft joe hn

feet sd

Diicttricitcsinase rice 28

22

ve

The Spooner Act, the treaty with Panama, and
the construction of the canal are not unconstitu-
tional.

The contentions of counsel on this point seem
to require but a few words in refutation.

The Constitution provides for the making of
treaties. The power to acquire territory is no
longer questioned.

Within the Territories of the United States
Congress exercises the combined powers of the
General and State governments. That the people
of a State might construct a highway or canal will
not be denied. (Monongahela Navigation Company
v. United States, 148 U. S., 312, 334.) The Canal
Zone is not in a State, and, Panama having con-
sented, Congress can do as much there as in a
Territory.

The Court of Appeals well said (Rec., p. 22):

The construction of highways is the special
function and even the duty of the State, and
that function can not reasonably be denied
to the United States in places in which it is
sovereign and has exclusive jurisdiction.

If Congress, as an incident to its power to make
war, may purchase places for public use, erect
forts, arsenals, and navy-yards, and build military
roads (2 Story on Constitution, 5th ed., secs. 1274,
1275), why may it not also construct a canal for

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the more convenient passage of its naval vessels
between Atlantic and Pacific coasts, and conse-
quently for the better protection of itself from
invasion?

Congress may, in exercising its power to regu-
late interstate commerce, construct, or authorize
individuals or corporations to construct, railroads
across the States and Territories of the United
States (California v. Central Pacitie Railroad Com-
pany, 127 U. S., 1), and may, directly or thru a
corporation created for that purpose, construct
bridges for the accommodation of interstate con -
merce by land. (Lurton v. North River Bridge
Company, 153 U. S., 525, 530.) The canal when
constructed will be an important roadway for
both interstate and foreign commerce.

Under the commerce clause Congress has power
over navigation (2 Story on the Constitution, sees.
1061, 1063) and removes obstructions to naviga-
tion. (Gilman vy. Philadelphia, 3 Wall., 713.) The
construction of this canal will be a very effective
and important removal of such an obstruction.

The canal will also be a post-road.

It is not necessary that the construction of the
canal should be authorized by the Constitution in
express language. The scope and extent of the
implied powers of Congress were discust by
Chief Justice Marshall in the great judgment in
McCulloch v. Maryland (4 Wheat, 316), by which
the power to incorporate a bank was demonstrated

24

and affirmed, notwithstanding the Constitution
does not enumerate among the powers granted that
of establishing a bank or creating a corporation.

Said Chief Justice Marshall:

‘*The Government of the Union, though
limited in its powers, is supreme within its
sphere of action,’’ ‘‘and its laws, when
made in pursuance of the Constitution, form
the supreme law of the land.’’ ‘‘Among
the enumerated powers of Government we
find the great powers to lay and collect taxes,
to borrow money, to regulate commerce,
to declare and conduct a war, and to raise
and support armies and navies. The sword
and the purse, all the external relations, and
no inconsiderable portion of the industry of
the nation are entrusted to its Govern-
ment.’’ ‘*‘ Where the law is not prohibited,
and is really calculated to effect any of the
objects entrusted to the Government, to
undertake here to inquire into the degree of
its necessity would be to pass the line which
cireumscribes the judicial department and
to tread on legislative ground.”’ (4 Wheat.,
423.)

Mr. Justice Gray, in the Legal Tender Case (110
U.S., 421, 489), fittingly remarked that—

A constitution, establishing a frame of
government, declaring fundamental princi-
ples, and creating a national sovereignty,
and intended to endure for ages and to be
adapted to the various crises of human af-
fairs, is not to be interpreted with the strict-

Fe reece ete : eoseiiele oer oe _-z

25

ness of a private contract. The Constitution
of the United States, by apt words of desig -
nation or general description, marks the
outlines of the powers granted to the na-
tional legislature; but it does not undertake,
with the precision and detail of a code of
laws, to enumerate the subdivisions of those
powers, or to specify all the means by which
they may be earried into execution.

It clearly follows that there has been no depar-
ture by Congress from its constitutional authority
and that the Court of Appeals rightly so held. Its
decision should be affirmed.

CuarLes W. RussExt,
Assistant Attorney-General.
GLENN E. Hustep,

Assistant Attorney.
Henry M. Hoyt,

Solicitor- General.

O

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0126%3A7. Public record. Not legal advice.