Citation
Canal Zone reports

Material Information

Title:
Canal Zone reports cases adjudged in the District Court for the Canal Zone
Spine title:
Canal Zone reports
Creator:
United States -- District Court (Canal Zone)
Place of Publication:
Mount Hope, C. Z
Publisher:
Panama Canal Press
Publication Date:
Language:
English
Physical Description:
1 v. : ; 22 cm.

Subjects

Subjects / Keywords:
Law reports, digests, etc -- Canal Zone ( lcsh )
Genre:
serial ( sobekcm )
federal government publication ( marcgt )
periodical ( marcgt )

Notes

Dates or Sequential Designation:
v. 3; 1914-1926.

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University of Florida
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UF Law School Library, General Collection
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This item is presumed to be in the public domain. The University of Florida George A. Smathers Libraries respect the intellectual property rights of others and do not claim any copyright interest in this item. Users of this work have responsibility for determining copyright status prior to reusing, publishing or reproducing this item for purposes other than what is allowed by fair use or other copyright exemptions. Any reuse of this item in excess of fair use or other copyright exemptions may require permission of the copyright holder. The Smathers Libraries would like to learn more about this item and invite individuals or organizations to contact Digital Services (UFDC@uflib.ufl.edu) with any additional information they can provide.
Resource Identifier:
020926374 ( ALEPH )
07339195 ( OCLC )

Related Items

Preceded by:
Canal Zone Supreme Court reports

Full Text



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L.

CANAL ZONE. REPORTS
VOLUME 3
CASES ADJUDGED
IN
TH-E-DISTRICT COURT
FOR
THE CANAL ZONE
FROM MAY 1, 1914, TO JANUARY 1, 1926

PANAMA CAN
MOUNT HOP
1927
L J
. '. .

VOL,1IO.

AL PRESS
E, C. Z.
V ~ OFFORD ilR+++ ARY
+g .
+.++ +







NAMES OF JUDGES OF THE DISTRICT COURT FOR THE
CANAL ZONE, AND TERMS OF SERVICE.
WILLIAM H. JACKSON...--..................------- May 1, 1914, to November 3, 1918
SJOHN W. HANAN .............................. November 23, 1918, to July 15, 1921
CHARLEs KERR ......................................... July 18, 1921, to July 19, 1922
JOHN D. WALLINGPORD... .......October 4, 1922, to September 20, 1924
G. H. MARTIN .......................... ----........................- ---------------------------Since October 17, 1924
HENRY D. CLAYTON .................................................----------------------------------.... Special Judge
JAMES W. BLACKBURN.....-.. -...........................................------- Special Judge







TABLE OF CASES REPORTED.
Page.
Abrahms, Bodden v .__......................................--------------------------------- 103
Almoguera, Government v ------------------------------------------------------------ 402
American F. B. Corp. v. S. S. Everest. -.....................--------------------- 395
American T. D. Co. v. The Texas Co ....................---------------------- 238
Anderson v. Goethals -_-------------....-------------_----------- -----.............. 23
Arcia, De Suze v ------------------------------------------------.................................... 117
Arias, Obarrio et al. v. -...----- .............................---------------------------------- 179
Arias v. Rodriguez & Uribe (Copartners) -----_--------------------.----------- 127
Ballen, Guardian, Ex parte.. ...............0..........................................----- 206
Barker, Lindo v ...............--------------_-------------_--------.......................... 437
Barrett v. Barrett ..........................-------- ----------------------------------------------3 46
Beckford v. Panama R. R. Co ........ I -------------------------- 47
.Bergen Point Iron Works, Shaw v .---------------------------------------------- 158, 353
Best, Bulgares v. ---------------------------------------.....----------------------------------- 56
Biron, Roberts v .----------.----.-----------------............ ..........-----------_----------- 506
-Blacker, Government v ........................................................----------- 621
Blanche C. Pendleton, The Schooner, The Panama Canal v 165
Bodden v. Abrahm s ......... ............................................................. 103
Bressie, Carbone v .-.-.--_-..- ........................--..------------------------------------ 160
Bressie et al. v. Goethals et al --------------------------------------------- ---------- 38
Brown v. Panama R. R. Co. ----............................----- ------------------ 266
Bulgares v. Best -.- ...-.---_--.----- ..........................---------------------------------- 56
Burkett v. Panama Elec. Co, ---.----- ..........................------------------------- 204
Carr v. Carr ................................................................. -------------------- 608
Carbone v. Bressie.........................----------------------------...........------------- 160
Castilla v. Panama R. R. Co ------- ------------------------------------------------- 220
Central etc. Co., Morrissey v -------..........................-------------------------- 161
Chisholm v. Panama R. R. Co, --------........................------------------------- 109
Corrigan el al. v. Smith ---------------------------------------------------------------------- 145
Cox, Government v .----------------------------------.....------------------------------------3 55
Cristobal, etc., Co. v. S. S. Rancagua -------............. ..... 174
Curtis v. Whitaker ------------------------------------------------------ -------23............... 2
David, S. S., v. General Petroleum Co ...... _.--------------------------- 601
Davidson, Admr., Panama Canal ex rel. Mohr v ------------------- -.. 406
Davis v. Panama R. R. Co. -.........----------------------- ---......................... 51




6 CASES REPORTED.
Page.
Deal, Ex parte -....-........................ .......................................... 372
DeAndrade, MacFarlane v -------------............................................... 99, 102
De Arias, De Obarrio v ...................---------------...................... 115
De Lima, Government v ....-............................................................. 442
De Obarrio v. De Arias----- .....................................................15
DePeiza, U. S. v- -------------------------------566
De Suze v. Arcia .............................. 117
Diaz, Government v. .................. ............ ..-. -----------------465
-Diaz v. Patterson-...__............... ................. 214, 349, 466, 493
D iez v. Schuber ........................................... -- ............... ..... 17,57
Dixon v. Goethals .................................................... .------- 23
Dixon, Guardian, v. Smith, Auditor. -- 186
Doran et al. v. S. S. President Van Buren ------------------------------------- 513
Everest, S. S., American F. B. Corp. v-. .-------...... 395
Fajardo H. et al., v. Republic of Colombia- - -.----- 35
Fajardo H., Government v- ......... -- .. ..-- 44
Falk v. The S. S. Olockson ................. -. 328, 369
Flannery et al., Government v ..........--------------------- 592
Frost v. Star & Herald Co 118............... 18
Garcia, Government v .........---------------------............ ----------.-. 479
General Petroleum Co. v. S. S. Davi. 601
George v. United Fruit Co.------ ..... 20
Gill et al., v. Watson et a ......... 178
Gillette v. Gillette._........ ..... .. -----.-.---.-- 584
Gittens v. Panama R. R. Co 109
Goethals, Anderson-Dixon v. ...................---------------------------- 23
Goethals et al., Bressie et al. v .....-.....8..................................... 38
Government v. Almoguera- ------_---. ..----------- -- 402
'Government r. Blacker- .....................................-----------.---- ------ 621
Government v. Cox- ----.... .. ... 355
Government v. Diaz .------------ ...---- ----------- 465
Government v. De Lima ---------------------------------- -------------------- 442
Government v. Fajardo ----------------------------------------------------------- 44
Government v. Flannery,, et al. 592
Government v. Garcia ------- ...........-- ------------ ---- -9-------------- 479
Government v. Lam -- -...-..-..--..--..........---........--------------------------------- 170
Government v. Livengood ---- ....... -- ...... ------------------ --- 542
Government v. McNally- ----------------.------- 568
Government v. Obsitnik 472
Government v. Webb ................................................-- -............... 486
Greenidge v. Panama R. R. Co ............. .......... --.-_------------------------- 133




Page.
Halvosa v. Halvosa ------------------------------------------------------------------------------ 535
Hamlin, Townsley v --------------- 553, 557
Number, Admr. v. Smith, Auditor ---- .-............--------------------- 136
Jackson v. Smith, Auditor -- --------....... ---------------Judd v. Sexton, t aL.-.......... - -----------King v. King-- ------------------ --------........-................ 211
Lam, Government v ------------------------------------1---------------- 170
Laport, Admx. v. Panama R. R. Co -------... -_ - -------------- 27, 31
Lebert, Admx. v. Pacific Mail S. S. Co -.....................---- ---------- 113, 121
Lee v. M artin ...................................................-- ---------------------------------- 162
Lindo v. Barker...........................................------------------------------------ 437
Livengood, Government v -_.--.-...........................------------------------------- 542
Lombard v. Panama Gas Co ---...........................----------------------- 160, 173
Lorenz, Government v ----------------------------------------- --................................ 592
McNally, Government v ------------ : ------------- -------......... 568
McConaughey v. Morrow, et al.. ........._-.......... .......... .......... --------- 77
McEwen v. Neville ............................................................-.- ------_-_-- 42
McGuire v. Ruck ----------------------------------------- _1 ------- t ------- ....... Oi7
McGrath v. Panama R. R. Co .-...................-.--.---------------- 410
McNeil v, panAMa R. R. Co _-_ --------- ------------------------ ---- __- 43$
MacFarlane v. De Andrade ---------------------------------------------------------- 99 102
Malone, In re Est -_-------------- -7-1 -------...----------------------- 548
Mann, Morley v ------------------- -------------------- 149
Markert, Adella, In re Adoption --_-----_------- ......------------------ ...------ 01
Martin, Leer ..............------------------------------ 6
M artinez, Ex parte -----------.-- ............................------- --------------------------- 191
Maryland Casualty Co., Otero v -.-...............--------------$ 60, 4U
Minnix, v. Panama R. R. Co -------------------------------------------------------------- 323
M organ v. M organ ----------------------------------..........--------------------------------- 97
Moreno, -Ex parte -------------------7--------------------------------------- 191
Morrissey v. Central etc., Co ----------- .-------------------- ------ 161
Morrow, et al., McConaughey v .................. I --------------------- -------- ,77
Morley v. Mann --- -_ .......... --------------------------------------- 49
Moyers v. Panama Elec. Co ------_-----------.........--------------------------- 140
Muldoon v. Muldoon ......... ----------------------------------------------- 475 $09
Neville, McEwen v ....-- ...-.-.-.-.------- ..................---------------.----.---------- 42
Nuaiez, In re ..... $




8 CASES REPORTED.
Page.
Obarrio et al., v. Arias ........................7................................................ 179
Obsitnik, Government v....................................---------------------------- 472
Olockson, The S. S., Falk v. ............................--------------- 328, 369
Otero v. Maryland Casualty Co ..........------------------------------------- 360, 411
Panama Canal ex rel. Mohr v. Davidson, Admr._. --------_------- 406
Panama Canal, The v. The Schooner Blanche C. Pendleton1 ......... 165
Panama Elec. Co., Burkett v ............................................................ 204
Panama Elec. Co., Moyers v .---------------------------------------------- ----140
Panama Gas Co., Lombard v ..... ...............--.---------------.......----------- 169
Panama R. R. Co., Beckford v .-....................---------------------------- 47
Panama R. R. Co., Brown, Rice, Williams v ----------- ....------------.----- 266
Panama R. R. Co., Castilla v. ------- ....---------------- --................ 220
Panama R. R. Co., Chisholm-Gittens--Smith v .......................... 109
Panama R. R. Co., Davis v....................................................... 51
Panama R. R. Co., Greenidge v.................----------------..------------ 133
.Panama R. R. Co., Laport, Admx. v .----------------------------------- 27, 31
Panama R. R. Co., McGrath v ----------------------------------------------------- .410
Panama R. R. Co., McNeil v .-.--..........................--------------------------- 435
Panama R. R. Co., Minnix v -----------_------------ ......------------------- **'"*.--- 323
Panama R. R. Co., Rance v -------- ........................------------------------------ 200
Panama R. R. Co., Rice, Admx. v --....................------- ----------------- 317
Panama R-. R. Co., Rock v ------------------------------------------------------- ----- 220
Panama R. R. Co., Toppin v --------------------------------------- ....-------------I- 154
Pacific Mail S. S. Co., Lebert, Admx. v .......................--- ------------ 113, 121.
Patterson, Diaz v ..-- ............--------------- .............................. 214, 349, 466, 493
Pedro, Ex parte -----------------------------------------------------.-.----------- 5--------588
President Van Buren, S. S., Doran v ------------------------------------------------- 513
Rance v. Panama R. R. Co ----.- ...........................--------------------------- 200
Rancagua, The S. S., Cristobal-Colon Stevedoring Co. v ............ 174
Reeves v. Reeves .--.----------------- .........................---------------------------- 576, 578
Republic of Colombia et al., v. Fajardo H., et a .................... 35
Rice v. Panama R. R. Co -------- ..........................-------------------------------- 266
Rice, Admx. v. Panama R. R. Co ---------------------------------------------------- 317
Ridenour, Marshal, Voloshin et at. v. .......................---..--------------- 445, 482
Roberts v. Biron -------------------------------...........--------------------------------------- 506
Rock v. Panama R. R. Co- --------------------------------------- 220
Rodriguez & Uribe (Copartners), Arias v ------------------.------------- 127
Rowe v. Royal Netherlands etc. Co .-------------------- ....----------------- 453
Royal Netherlands etc. Co., Rowe v ---------- -............----------------------- 453
Ruck, McGuire v --------------------------------.........--------- _---------------------- 617
'Sattler et al., v. The S. S. Urubama ---------------------------------------------- 404
Schuber, Diez v ............................................................................... 17, 57




CASES REPORTED. 9
Page.
Seraphin v. Shropshire ----------------------------------------------.------------------- 490
Sexton, et al., Judd v -....................---------------.--------------------................ 141
Shropshire, Seraphin v ................ ............................... 490
Shaw v. Bergen Point Iron Works ................................................ 158, 353
Simpkins v. Simpkins .----------------------------------------..------------------------- 273
Smith v. Panama R. R. Co ....................................---------------------------- 109
Smith, Auditor, Humber, Admr. v ----......................---------------------- -. 136
Smith, Auditor, Jackson v --------------------------------------------------------------- 59
Smith, Corrigan et al., v ---------------------------------------------------------------------- 145
Smith, Auditor, Dixon, Guardian, v ................................................ 186
Smith et al., Teran v ........................................-------------- ---------------------.344
Star & Herald Co., Frost v ..............--.---------------------------------------------- 118
Stoomvaart etc. v. United States and S. S. West Himrod ............. 418
Teran v. Smith et al. ------------------------------------------------- ......------------------ 344
Texas Co., The, American T. D. Co. v -...................-------------------- 238
Toppin v. Panama R. R. Co .....................----- ------------------------------- 154
Townsley v. Hamlin ---.----------- ...........................---------------------------- 553, 557
United States v. Almoguera --.--- ............................--------------------------- 402
United States v. DePeiza .........----------- --------....................... --------- 566
United Fruit Co., George v ................................-------------.----------------- 20
United States v. Williams -------.-.------ ...............................---------------- 297
United States v. S. S. Wolsum ..... -------------------------- 418
Voloshin etat., v. Ridenour, Marshal .............................................. 445, 482
Ward, Ex pare .....................................................-----------------.-------------- 191
Watson et al., Gill el al., v -------.-.............................---------------------------- 178
Webb, Government v .....................................-- .......-- ---------------- 486
West Himrod, S. S., Stoomvaart, etc. v ..........................----------------- 418
Whitaker, Curtis v .........................................------------------------------------- 203
Williams v. Panama R. R. Co .-............................------------------------- 266
Williams, United States v ------..------------------.......................--------- ------ 297
Wolsum, S. S., United States v ..................................-------. ------------- 418

Young v. Young.







TABLE OF STATUTES CITED.

(A) Those of, the United States: Page.
Panama Canal Act, Sec. 3-----------------------............... 23
]Employers' Liability Act, 1908._------------------------- 27, 31
Panama Canal Act, Secs. 3-6 --------------------------------- 38
Panama Canal Act, Sec. 5.- ---------------------------------- 133
Act of Congress, April 22, 1908----------------------------- 133
Act of Congress, March 3, 1915_----_------_---------- ...136
Panama Canal Act, Sec. 10----------------------------------- 191
Employers' Liability Act, 1916 .... ---------------------- 200
Employers' Liability Act, 1908-1910.....------------_----- 200
Panama, Canal Act, Sec. 5 ---------------------------------- 200
Panama Canal Act, Sec. 2 ---------------------------------- 220
Employers' LiabilityAct, 1908-1910 ------------------ 266
Constitution, Art. 4, Sec. I1--- ------------------------------ 273
Act of Congress, April 28, 1904 -- _------------------------ 297
Panama Canal Act -------_--_------------------ 297
Act of Congress, June 15, 1917 -------------------------- 297
Employers' Liability Act, 1916 -------------------------- 317
Act of Congress, March 9, 1920..._------------------------ 328
Act of Congress, July 20, 1892------------------ ............353
Articles of War 13, 85, 90, 96------------------------------ 355
Act of Congress, June 28, 1902 ------------------------ 377
Act of Congress, April 28, 1904 --------------------- 377
Panama Canal Act, Secs. 2, 4, 7 ------------------------- 377
Act of Congress, 1910 (36 Stats., 604).--___._- 395 Employers' Liability Act, 190 ---_----------------435
R. S., Secs. 5270-5273-----_------------I--------------- 445
Act of Congress, August 16, 1914 --------_----------------- 472
Act of Congress, September 21, 1922, Sec. 15.-........----__475
R. S., Sec. 5273 ---------------------------------------------_--482
Act of Congress, September 21, 1922, See. 12..------......497
Act of Congress, September 21, 19212, Sec. 20---------.... .501
Constitution, Fifth Amendment-_----------------------- 501
Panama Canal Act, Sec. 2 -----_------------------------- 501
Act of Congress, September 21, 1922, Sec. 15 ------------ 475
Act of Congress, August 21, 1916, Sec.. 1-----519 Act of Congress, September 21, 1922, Secs. 13-19-----...535 Act of Congress, June 28, 1901 ------------------------------- 542




12 TABLE OF STATUTES CITED.
Page.
Act of Congress, April 28, 1904 -------..............------------------- 542
Panama Canal Act, Secs. 1, 2, 7, 9 ----- -- 542
Act of Congress, September 21, 1922, Sec. 9 ------------ 542
Panama Canal Act, Sec. 7 568
Act of Congress, September 21, 1922, Sec. 7 1 ---------------Act of Congress, September 21, 1922, Secs. 13-15-__---- 584 R. S., 4612-4552 ............ . ..-------------------------------- 513
R. S., Sec. 1547 -------------------------..........---------------------------- ----- 592
National Prohibition Act ----...................----------------.----- I ..---- 592
Act Congress, Nov. 23, 1921 -------.......................---------------- 592
Act Congress, May 18, 1917-' ..........................----------------- 592
Act of Congress, October 6, 1917 -................------------------- 592
Joint Resolution, March 3, 1921 ------- .........-------------------- 592
Panama Canal Act, Sec. 1 ............-................. ................. 601
Panama Canal Act, Sec. 8 --------- -------- ............................. 605
(B) Those of the Canal Zone:
Executive Order, July 28, 1910 (E. 0. 98) ---------------- 20
Executive Order, May 9, 1904 (E. 0. 20) ....................... 23
Civil Code, Art. 1050 ------------------------------------------------------ 27, 31
Code Civ. Pro., Secs. 677-8 ------------------------------------------------ 31
Civil Code, Arts. 411,412, 413, 414 --------------------------------- 31
Act No. 21, L. C. Z -------------------------------..------------------------ 38
Executive Order, December 5, 1912 (E. 0. 132)............ 38
Penal Code, Sec. 34......------------------------... --------------------- 44
Code Civ. Pro., Sec. 126 -.-.......................--------------------------- 47
Code Civ. Pro., Secs. 411-413 ........................................ --- 118
Civil Code, Arts. 2315, 2341, Act. 120 of 1908 ------------- 121
Code Civ. Pro., Sec. 146- ----......................------------------------- 121
Executive Order, March 20, 1914, Secs. 2, 30, 33 (E. 0.
165) --------------------------------------------------...--------------------- 133
Executive Order, May 9, 1904 (E. 0. 20) ..-.................. -----133
Civil Code, Art. 2341 -------------------------------------------- ----------- 154
Executive Order, August 8, 1914 (E. 0. 195) -----.......---- 170
Penal Code, Sec. 301 --.--.....................----------------------------- 170
Executive Order, December 6,1904 (E. 0. 31) --------- 170
Executive Order, July 28, 1910 (E. 0. 98) ------------------- 169
Code Civ. Pro., Sec. 608 -7.*.-....................------------------------- 186
Executive Order, February 6, 1917 (E. 0. 220) -------- 191 Civil Code, Arts. 354, 360, 361, 1049, 1096 --------.----------- 206
Civil Code, Arts. 785, 2526, 2529 ---------------------------- ------ 214
Civil Code, Art. 2341............................---------.------------------- 220
Executive Order, May 9, 1904 (E. 0. 20) -------------------- 220
Executive Order, May 9, 1904 (E. 0. 20) ..................... 297




TABLE OF, STATUTES CITED. 13
Page.
Executive Order, March 8, 1904 (E. 0. 19) ----------------- 297
Executive Order, January 27, 1914 (E. 0. 155) .... 297
Civil Code, Arts, 152, 153, 154 ---------------------------------- 346
Executive Order, February 6, 1917 (E. 0. 220) -........... 372
Executive Order, December 3, 1921 (E. 0. 292) ----------- 377
Executive Order, May 9, 1904 (E. 0. 20) ------------------- 377
Act No. 8, Sec. 53, L. C. Z -------.--------- -------------377
Executive Order, February 2, 1914 (E. 0. 158) ------------ 377
Executive Order, January 15, 1915 (E. 0. 206) ------ ---- 377
Executive Order, May 25, 1915 (E. 0. 213) .................. 377
Executive Order, May 9, 1904 (E. O.20) ......-.... 410
Code Civil Pro., Secs. 42-443 ..........................................---- 437
Code Civ. Pro., Secs. 531-817 -------- -------------214
Executive Order, February 6, 1917 (E. 0. 220) -------...... 472
Executive Order, September 25, 1913 (E. 0. 151) ...... 472 Penal Code, Sec. 183 --------------------------------- ---------------------- 486
Executive Order, May 9, 1904 (E. 0. 20) -.......------------- 501
Code Civ. Pro., Sec. 794 ------------------------ ...------------------ 501
Code Civ. Pro., Secs. 1-45 -. -------------------------------- 475
Executive Order, September 13, 1923 (E. 0. 337) ........ 519 Executive Order, February 6, 1917 (E. 0. 220) ........... 519
Code Crim. Pro., Sec. 5 --------- ...............-------------------------- 542
Executive Order, May 9, 1904 (E. 0. 20) -----.....------------ 542
Executive Order, March 13, 1907 (E. 0. 60) ----------------- 542
Executive Order, January 27, 1914 (E. 0. 155) ------------- 542
Civil Code, Arts. 1041, 1042, 1045, 1047, and 87 of
Law 153 of 1887 --- .-............-------------------------- 548
Code Civ. Pro., Sec. 8 ---------------------------------------------------- 553
Civil Code, Art. 2341 --------------- .............------------------------- 557
Civil Code, Arts. 1 to 3, 5 to 11, 126, 135, 137,140, and
Law 153 of 1887 ..............................---------------------------- 548
Executive Order, May 31, 1907 ----- .............-------------------- 548
Laws of C. Z. Sec. 24, Act No. 1 .....------------- -.....-------- 548
Act No. 8, Sec. 42, L. C. Z -------------------------------------------- 566
Penal Law U. S., Sec. 211 -------- ...............-------------------- ------- 566
Penal Code Title VI, L. C. Z., 102 ---------------.---------------- 568
Code Civ. Pro., Sec. 71 --------------------------------------------------- 568
ExecutiveOrder, July 28,1925, Rule 23, Subdivision (e) 568 Executive Order, November 7, 1908 (E. 0. 85) -------- 568 Executive Order, March 12, 1914 (E.O. 163) --------------- 568
Code Civ. Pro., Secs. 82, 87, 97 --------------.------------------- 576
Laws Canal Zone, pp. 77-111-189 --------------------------------- 592
Executive Order, page 24 -- ---------------------- 592
Executive Order, page 97 -------------- ...--------------------- ---592




14 TABLE OF STATES CITED.
Page.
(C) TREATIES:
Between U. S. and Panama, Arts. 3 and -6...... .. 38, 136
Between U. S. and Panama, Taft Agreement-------------- 170
Between U, S. and Panama, Art. 13.----------------------------- 170
Between U. S. and Panama ------------- .......------------ 186, 297
Between Chile and the United States ...............----------- 445, 482
Between U. S. and Panama........................--------------------- 465
Between U. S. and Panama, Arts. 2-7 ---------------------- -- 519
Between U. S. and Panama, Arts. 2-3 --------- .......-------------- 542
Between U. S. and Panama, Arts. 2-3...............--------- 601
Boundary Convention, September 2, 1914 ................... 601




'ABLE OF GASES APPEALED FROM CANAL ZONE TO FIFTH
CIRCUIT COURT OF APPEALS AND
U. S. SUPREME COURT
Asanmah tV. Government .............................................. Not reported
Astoria, The, McCormick & Co. v .---------------------------------------- --------Anglo-Amer. Agencies v. Olsen ...... -- --281 Fed. 618
Bergen Point 1. W. v. Shaw ... ---------------------------------- 249 Fed. 466
Coulson v. Government ------------------------------------------------ 212 U.S. 553
Cristobia-Colt S. Co. v. The Rancagua..........----------- 256 Fed. 843
Dixon v. Goethals ------------------------------------------------------------ 221 U. S. 1021
DeAndrade v, McFarlane ---------------------------------- --.. 1-.--- Not reported
Davis v. Government .-------------------------------------------------- 299 Fed. 256
Falk v. S. S. Olockson ------------------------ ---------- ------------------ 282 Fed. 52
Fullerton v. Government .---------- -------........................................................
Lebert o. Pacific M. S. Co ----------------------- ....... ------- 249 Fed. 349
McConaughey v. Morrow ............................................. 1279 Fed. 617
263 U.. S. 39
McGrath t. Panama R. R. Co ..............................----.... 298 Fed. 303
Nifou v. Government ......................................................... 198 U. S. 581
Olockson, The ---------------------------------......------------------------------ 282 Fed. 52
Pacific M. S. S. Co. v. Balderach ----------------------............... 229 Fed. 562
Panama R. R. Co., v. Beckford ----------------------------------- 231 Fed. 436
Panama R. R. Co. v. Gittens, Smith, Chisholm ------------ Not reported.
Panama R. R. Co. v. Bosse --------------------------------------- 239 Fed. 303
249 U. S. 41
Panama Elec. Co. v. Mayers........ ........................... 249 Fed. 19
259 Fed. 219
Pacific M. S. S. Co. v. Beneby.---.----.-........................... 250 Fed. 444
Panama R. R. Co. v. Toppin ........................... 250 Fed. 989
252 U.S. 308
15




TABLE OF CASES

Panama R. R. Co. v. Curran ....................
Panama R.. R., Co. v. Robert-----..-----------------.
Panama R. R. Co. v. Pigott..................-------------Panama R.. R. Co. v. Rock.................................
Panama R. R. Co. v. Castilla --.- --------------------------Panama R. R. Co. v. Strobel. -- --..--------------------Patterson v. Diaz--------------------------...... ............

Fed. Fed. Fed. U. S.
Fed. U. S.
Fed. Fed. Fed. Fed. U. S.

Reina v. Bracho ---------------------------------------------- 256 Fed. 834
Rancagua, The----------------------------.......................256 Fed. 843.
Smith v. Government.-- ------- ------------------------------ 239 Fed. 133
Smith, Auditor v. Jackson--------------------................241 Fed. 747
246 U. S. 388
Smith (J. Budd) v. Government- -------29Fd 27
Smith (J. Budd) v. Corrigan I ----------------29Fd 7
Simpkins v. Simpkins ----------------------------------------- 271 Fed. 87

Texas Co. v. Quelquejeu ....................................
Texas Co. v. American T. D. Co ------------------Thompson & Daley v. Panama R. R. Co.......----Theoktistou v. Panama R. R. Co ....----------...........
Voloshin et al.'v. Ridenour -................................

263 Fed. -491 272 Fed. 670 5 Fed. (2d) 957' 6 Fed. (2d) 116 299 Fed. 134




CASES ADJUDGED
IN THE
DISTRICT COURT FOR THE CANAL ZONE
FROM
July 1, 1914, to December 31, 1925
DIEZ versus SCHUBER.
(District Court, Canal Zone, Balboa Division, January 7, 1915.)
Civil No. 40.
1. JUDGMENTS. RES JUDICATA.
Judgments rendered in the Republic of Panama, by the laws of which our
judgments are reviewable on the merits, are not entitled to full credit and conclusive effect when sued upon in this country, but are only prima facie
evidence of the plaintiff's claim.
2. JUDGMENTS. COMITY.
In the absence of statute or treaty, the comity of this country does not require
that judgments of a foreigncountry be recognized as conclusive in this country
where such foreign country does not give like effect to our own judgments.
3. JUDGMENTS. RES JUDICATA.
A judgment rendered between the same parties and involving the same issues
in the courts of the Republic of Panama, is of no force or effect in the Canal Zone unless it be duly authenticated, and then its only effect is to establish,
primafacie, the rights of the parties as fixed by the terms of the judgment.
Attorney for plaintiff, Win. H. Carrington.
Attorneys for defendant, Hinckley and Ganson.
JACKSON, District Judge. The plaintiff in this action seeks to recover from the defendant the sum of $1,179, United States currency, as damages arising out of a contract made and entered into between the parties on the second day of December, 1912. The contract in question was one of copartnership, and the plaintiff alleges that he was induced to enter into same by reason of false and fraudulent representations on the part of the defendant and that by reason thereof, and the subsequent recission of said contract, he sustained the damages set forth in his complaint.

MR 97966-2




DISTRICT COURT FOR THE CANAL ZONE.

Defendant interposes a plea of res judicata, predicated upon facts set forth in said plea, that practically the same matters and things were adjudicated between the parties hereto in the municipal court of the City of Panama, R. P., in which judicial proceeding the defendant in this action recovered against the plaintiff herein the sum of $282.55, Panamanian silver, which judgment was afterwards affirmed by the Circuit Court of the First Circuit of the City of Panama on the second of June, 1914. Copies of said judgments are attached to and made a part of the said plea of res judicata.
It is insisted by the plaintiff that the litigation in the Republic of Panama did not necessarily, or in fact, involve the same questions as are here presented for determination. But a careful reading of the judgments of the Panamanian courts has led me to the contrary conclusion for it would seem that in the Panamanian courts all questions arising out of the liquidation of the alleged partnership between the parties passed in review before those courts, or at least that each party thereto had his day in court as to all questions that might possibly arise out-of the liquidation of the said contract which is the basis of the present suit. I am therefore led to conclude that substantially the same questions were involved in the Panamanian court as are here presented for determination.
However, it must be said, in the first instance, that thesaid judgment of the Panamanian courts, which is attached to the defendant's plea, is but an unauthenticated copy and as such is not admissible for the purpose of establishing the defense of resjudicata which is here invoked.
In this connection I quote from 23 Cyc. page 1161, as follows:
The judgment should be authenticated by the seal of the court, if any, the certificate of the officer in whose custody the record remains, the attestation of the principal judge of the court to the official character of the person certifying, and the whole fortified by the certificate of the executive department of the country and the impress of its great seal.
The noncompliance with this prerequisite is sufficient to exclude here the admission of the judgment as a bar to the action in question. But aside from this formal objection, a more fundamental one is presented and that is as to the conclusive force and effect of a judgment in the Panama courts when sued upon or pleaded in bar in this court.
It was stated in argument by counsel for the plaintiff, and not denied, that the, Panamanian courts did not give full force and effect to the judgments of this court, but that causes of action which had been determined here could be, and in fact were, readjudicated in the Panamanian courts in actions brought therein. Such being the case, their judgments could not, under the ruling of the Supreme Court of the United States, be held as final and conclusive here.




DIEZ V. SCHUBER.

In Hilton vs. Guyot, 159 U. S. 113, it was held as follows7. Judgments rendered in a foreign country, by the laws of which our judgments are reviewable on the merits, are not entitled to full credit and conclusive effect. when sued upon in this country, but are only primafacie evidence of the justice of the plaintiff's claim.
8. In the absence of statute or treaty, the comity of this country does not require: that judgments of a foreign country be recognized as conclusive in this country, where such foreign country does not give like effect to our own judgments,
9. In an action on a French judgment, evidence by defendant that the French courts& give no force and effect to the judgments of this country against French citizens, and that they are there reexamined on the merits, although rendered after proper personal service of process made in this country, is admissible.
This proposition of law seems sustained by the great weight of authority and the principle thereof would clearly preclude the judgments of the courts of Panama from having more than prima facie force and effect in our courts. In other words, the judgment of a court of a foreign jurisdiction is conclusive only upon the principle of comity between the countries. Among the different States of the Union the judgments of the courts of the different States are conclusive by virtue: of an express provision in the Federal Constitution. But in cases where. this constitutional provision does not control, and where there is no international comity existing between the two governments as to the: recognition of the judgments of their respective countries, there is no requirement that the judgments of foreign countries should be held' binding and conclusive. As a matter of fact, the contrary has frequently been held.
For instance, in Mills vs. Duryee, 7 Cranch, 481, it is held:
A foreign judgment is only prima facie evidence at common law.
In support of this a number of decisions are cited. This seems to be the rule recognized in Hilton vs. Guyot, 159 U. S. 113, especially with reference to executory judgments, i. e., judgments for the recovery of money only as distinguished from the judgment of a foreign court,
with reference to the res over which said foreign court has jurisdictionFor instance, it is stated in Hilton vs. Guyot as follows:
There is hardly a civilized nation on either continent, which, by its general law, allows conclusive effect to an executory foreign judgment for the recovery of money only.
Further:
A judgment purely executory rendered in favor of a citizen or resident of thecountry, iki a suit there brought by him against a foreigner, is not in all cases conclusive against the latter in an action brought in his own country to enforce the judgment.
It would therefore seem, as a principle of law, that where an executory judgment for the recovery of money only is sued upon in a foreign jurisdiction or is pleaded in bar to another action brought, that it is at most only primafacie evidence and not obligatory unless there exists between the two jurisdictions some constitutional provision requiring that it




DISTRICT COURT FOR THE CANAL ZONE.

should be obligatory or unless it is shown that there is a comnity between the respective governments by which the judgments of their courts are reciprocally considered as conclusive.
It follows from the foregoing that the plea of res judicatct must be and the same is overruled.
[NOTE]. See decision on this case p. 57.
GEORGE versus UNITED FRUIT COMPANY.
(District Court, Canal Zone, Cristobal Division, February 13, 19 15.) Civil No. 56.
1. JURISDICTION. TRANSITORY ACTION.
Where it appeared that the plaintiff is an alien, resident of the Republic of Panama, and the defendant is a corporation existing under the laws of Massachusetts, U. S. A., and the plaintiff was injured in an accident on the defendant's railroad track at Almirante, in the Republic of, Panama, while in the performance of duties as an employee of the defendant, held, that the courts of the Canal Zone will decline jurisdiction of such an action on the grounds of public policy, even though the defendant has property and an agency in the Canal Zone, notwithstanding the provisions of the Executive Order of July 28, 1910 (E. 0. 98), it appearing that the courts of Panama are open to the plaintiff for the redress of the alleged wrong, and that service of process could be had
on the defendant in the Republic of Panama.
Attorneys for plaintiff, V. E. Bruno and E. A. Reid.
Attorney for defendant, T. C. Hinckley.
JACKSON, District judge. In this case the complaint shows that the plaintiff is 'a West Indian, at present residing at Colon, Republic of Panama; that the defendant is a corporation organized and existing under the laws of the State of Massachusetts, United States of America, having personal and real property and an agency, and carrying, on business at Cristobal, Canal Zone; and that while said plaintiff was employed on one of defendant's cars on its railroad track at Almirante, Bocas del Toro, Republic Iof Panama, and while in the performance of his duties shoveling ballast, he was injured by a collision, which is alleged to have been the result solely of the negligence and carelessness of the defendant, through its agents and employees, as a result of which his arm was crushed, necessitating the amputation at 'the shoulder and by reason of which plaintiff asks damages in the sum of $10,000 U. S. C.
It will be seen from the foregoing that the plaintiff is an alien nonresident of the Canal Zone; that the defendant is a foreign corporation; and that the alleged cause of action arose wholly without the Canal Zone, viz: in the Republic of Panama. For these reasons the defendant interposes a plea to the jurisdiction, of the, court and authorities are




GEORGE V. UNITED FRUIT CO. 21
cited which would seem .to support the theory that there is actually no jurisdiction in such cases. It was decided in New York, for instance, in the -case of Robinson vs. Ocean Steam Navigation Co., 2d L. R. A. 631, as follows:
We therefore have a case where plaintiff is a nonresident, the defendant a foreign corporation, and the cause of action did not arise within this State; and therefore, no court within this State has jurisdiction of the action.
However, there are a number of cases that appear to hold that in transitory actions of this kind, the courts may properly assume jurisdiction and there are also other well-considered cases that hold that even if there be the necessary jurisdiction, the courts will, under certain circumstances, refuse the exercise thereof for, reasons of expediency, public policy, or comity.
Section 1 of the Executive Order of July 28, 1910, provides as follows: No civil action or special proceeding shall be brought or proceeded with in the courts of the Canal Zone, in any case in which both the parties, plaintiff and defendant, are alien nonresidents of the Canal Zone, and the cause of action arose without the territorial limits of the CanalZone Government, and the party proceeded against has no property within such territorial limits, subject to the jurisdiction of the Canal Zone courts.
However, it was said by the Supreme Court of the Canal Zone, in construing this section in the case of the Panama Development & Manufacturing Co. vs. Lam Hing & Co., 2 C. Z. Rep., 300, as follows,:
It will be noted that while the Executive Order provides negatively that no civil action shall he brought in the courts of the Canal Zone in which both parties, plaintiff and defendant, are alien nonresidents of the Canal Zone, and the cause of action is one which arose without the territorial limits of the Canal Zone Government, and the party proceeded against has no property within said territorial limits, that it does not affirmatively provide the converse thereof, viz: that any civil action may be brought in the Canal Zone courts where the parties are alien nonresidents and the cause of action arose without the territorial limits of theCanal Zone, provided the party proceeded against has property within the said territorial limits subject to the jurisdiction of the Canal Zone courts. In other words, it was not intended by this provision to extend to the Canal Zone courts a jurisdiction of local actions which it did not otherwise possess.
And I may add here that it was not intended by this provision of the Executive Order to extend to the Canal Zone courts a jurisdiction in transitory actions where the court would not otherwise have j urisdiction, or where it would be otherwise inadvisable on the grounds of expediency_, comity or public policy.
In the Lam Hing case the Supreme Court said further:
But even if this were a transitory action as distinguished from one purely local, we think the court should be slow to assume jurisdiction thereof upon the broad question of policy.
and the Supreme Court there distinguished from other cases where one of the parties "in each of such other cases had been residents of




DISTRICT COURT FOR TEE CANAL ZONE.

the Canal Zone. The Supreme Court further said in the Lam Hing case as follows:
But here we have a case where both parties, plaintiff and defendant, are citizens and residents of the Republic of Panama, where the contract was made in Panama to be fully executed therein, and the subject matter thereof situated wholly within the territorial limits of Panama. Aside from the question of the doubtfulness of the ability of our courts to do perfect justice to all parties under such circumstances, it may be said that as a question of policy, the parties under such circumstances should be left to litigate their claims in their own courts, in the jurisdiction where the contract was made, where the property was situated and where the contract was intended to be performed.
In support thereof, there was cited and quoted the case of Mexican National Railroad vs. Jackson, 31 L. R. A. 276, and the Supreme Court further said as follows:
While not attempting in this opinion to lay down a rule for the guidance of all jurisdictional questions, for determination hereafter arising in transitory actions that may be brought in the courts of the Canal Zone by citizens and subjects of Panama or other foreign jurisdictions against other foreign citizens and residents upon foreign contracts or rights arising in foreign jurisdictions, we think that the principles announced in the cases of Little vs. C. St. P. M. & 0. Ry. and Mexican National R. R. vs. Jackson ought to serve, to a great extent, as a guide, and that the assumption of j urisdiction'in such cases should be closely and carefully scrutinized. In so stating we are satisfied that the courts of the Republic of Panama would, under like circumstances, be guided by similar considerations; that is, that in an action arising wholly between citizens of the United States, resident and domiciled in the Canal Zone, upon a contract or cause of action made or arising in the Canal Zone, and relating to matters to be performed wholly within the Canal Zone, the courts of the Republic of Panama would, upon principles of policy, if not from lack of jurisdiction, be loath to assume jurisdiction of such causes.
The Court of Queen's Bench of Great Britain has similarly decided that the declination of jurisdiction of a cause of action based on an extraterritorial tort is within the discretion of the court when the parties are nonresidents. Therefore, basing the decision in this case upon the matter of discretion, it must be said that the courts of our sister Republic, Panama, where the wrong was alleged to have been committed, and where the plaintiff lives, are open to the plaintiff. The defendant maintains its offices in the Republic of Panama and conducts its business therein. The contract of service was entered into and to be performed in the Republic of Panama. The alleged injury occurred while acting as an employee in the service of the railroad of the defendant in Panama, which said railroad does not extend into the Canal Zone, and it would seem that under all these circumstances, that this court should not take upon itself to determine the controversybut that justice would better be served by leaving the plaintiff to seek his remedy in the Republic in which he resides.
The plea to the jurisdiction is therefore sustained.
[NOTE]. On Transitory Actions, see decision of Circuit Court of Appealsin Panama Electric Co. vs. Moyerw, 249, F. 19, and Theoktistou vs. P. R. R. Co.-Fed. (2)-;
Certiorari to Sup. Ct. denied.)




DIXON-ANDERSON V. GOETHALS.

DIXON versus GOETHALS.
ANDERSON versus GOETHALS.
(District Court, Canal Zone, Cristobal Division, March 15, 1915.)
Civil No. 71.
1. JURISDICTION. INJUNCTION.
Where plaintiffs whose lands were situated in the Canal Zone sought to enjoin
their removal from the lands by -the officials of the United States until they had been paid compensation for the expropriation of the lands, it is held -that the court is without jurisdiction to grant an injunction restraining threatened acts of dispossession in advance of payment of compensation for the property taken, the treaty between the United States and the Republic of Panama and the Panama Canal Act providing for such expropriation without first paying compensation, and providing for a Joint Commission with exclusive jurisdiction to determine the amount of compensation.
2. TREATIES. CONSTITUTIONAL LAW. CONFLICT OF LAWS.
The treaty between the United States and the Republic of Panama providing
for expropriation of land in the Canal Zone without precedent payment Of compensation therefor, is not a violation of the "due process" clause of the Constitution of the United States or the provisions of the Constitution of the
Republic of Panama with respect to expropriation.
3. TREATIES. EFFECT OF TRANSFER OF SOVEREIGNTY.
Where a government, by treaty, parts with sovereignty over a part of its domain,
the new sovereign may legislate with respect thereto without regard to constitutional provisions of the granting sovereign.
(NOTE-Dismissed by C. C. A., 221 Fed., 1021.)
See, Reina vs. Bracho, 256 Fed. 834.
Attorneys for plaintiff, Fairman, Maclntyre and Enderton.
Attorneys for defendant, W. K. Jackson and C. R. Williams.
JACKSON, District Judge. The plaintiffs in the above-entitled cause seek an injunction restraining defendants from the forcible seizure and destruction of their properties pending proceedings before the Joint Commission to determine the value thereof, and the payment of the amounts therefor.
The theory advanced by the plaintiffs in support of their application is that in cases of expropriation of private property for public use upon the Canal Zone, injunction should issue to prevent the dispossession of the owner until he receives compensation for his property as required by the Constitution and laws. In support thereof they rely upon the provisions of the Constitution of the Republic of Panama which were in force and effect at the time of the ratification of the treaty between the United States and the Republic of Panama. The provisions of the Panama Constitution in question are as follows:
For serious reasons of public utility, defined by the legislator, forcible alienation may take place by means of a judicial order, and indemnity shall be paid for the value of the property before the expropriation takes place.




DISTRICT COURT FOR THE CANAL ZONE.

Also:
The .private interest willI gi ve Way to the public Iinterest. But the expropriation which it is necessary to make, requires previous and full indemnization.
And also:
For important reasons of public utility, defined by the legislator, there can take place the forced alienation of property or rights under judicial writ, but the payment of the declared value will be made before dispossessing the owner of same.
And the conclusion which the plaintiffs' counsel. reaches is that the inhabitants of the Canal Zone have not lost any of the guaranties of the Constitution 'of Panama, and that in so 'far as these constitutional gu aranties are abrogated or infringed by the treaty, that such provisions of, the' treaty are unconstitutional and void.
It is their contention that a treaty can not grant, convey, or barter rights of the citizens -which are protected by a constitution and that treaty provisions in contravention of preexisting constitutional guaranties have no binding force or effect. Generally speaking, this proposition may be conceded, but it must be equally. conceded that where a government, by treaty,. parts with the sovereignty of a part of its possessions, that the new sovereignty is equally empowered to legislate therefor without regard to preexisting laws or constitutions.
The treaty in question was ratified shortly after the Republic of Panama had achieved its independence from Colombia, and Article 1 of the said treaty provides: "The United States guarantees and will maintain the independence of the Republic of Panama." In consideration of such guaranty on the part of the United States and other provisions contained in said treaty, it was provided in Articles
3 and 6 thereof as follows:
ARTICLE Ill.
The Republic of Panama grants to the United States all the rights, power, and authority within the Zone mentioned and described in Article I I of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise if it were the sovereig of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power, or authority.
ARTICLE Vi.
The grants herein contained shall in no manner invalidate the titles or rights of private land holders or owners of private property in the said zone or in or to any of the lands or waters granted to the United States by the 'provisions of any article of this treaty, nor shall they interfere with the rights of way over the. public roads pass'. ing through the said zone or over any of the said lands or waters unless said rights of way or private rights shall conflict with rights herein granted to the United States in which case the rights of the United States shall be superior. All damages caused to the owners of private lands or private property of any kind by reason of the grants contained in this treaty or by reason of the operations of the United States, its agents or employees, or by reason of the construction,' maintenance, operation, sanitation,




DIXON---7ANDERSON V. GOETHALS.

and protection of the said Canal or of the works of sanitation and protection herein provided for, shall be appraised and settled by a Joint Commission appoi noted by the Governments of the Un -ited States and the Republic of Panama, whose decisions as to such damages shall be final and whose awards as to such damages shall be paid solely by the United States. No part of the work on said Canal or the Panama Railroad or on aiiy auxiliary works relating thereto and authorized by the terms of this treaty shall be prevented, delayed or impeded by or pending such proceedings to ascertain such damages. The appraisal of said private lands and private property and the assessment of damages to them shall be based upon their value before the date of this convention.
But it is contended by counsel for plaintiffs that the provisions of Article VI of the treaty can have no binding force and effect so far as to deprive a property owner of his property without compensation in advance, because the President, by Executive Order of May 9, 1904, expressly declared that:
The laws of the land, with which the inhabitants are familiar, and which 'Were in force on February 26, 1904, will continue in force on the Canal Zone and in other places on the Isthmus over which the United States has jurisdiction, until altered or annulled by the said commission *
It is their contention that this Executive Order of the President necessarily put in force and operation in the Canal Zone, all of the constitutional guaranties of, the Constitution of Panama. But to this it may be answered that this Executive Order was made subsequent to the ratification of the treaty and was made in contemplation of the fact that the provisions of said treaty were in force and operation in the Canal Zone and that among said treaty provisions were the following:
* unless said rights of way or private rights shall conflict
with rights herein granted to the United States in which case the rights of the United States shall be superior.
And also:
No part of the, work on said Canal or the Panama Railroad or on any auxiliary works relating thereto and authorized by the terms of this treaty shall be prevented, delayed, or impeded by or pending such proceedings to ascertain such damages.
It may also be stated that if the President of the United States could, by, Executive Order, create a constitution or system of laws for the government of the Canal Zone, that the Congress of the United States could so do with equal authority. And in fact, the laws established for the temporary government of the Canal Zone by the said Executive Order, have been altered, superseded, and in other respects ratified, by the Panama Canal Act of August 25, 1912, wherein Section III thereof provides as follows:
The President is authorized to declare by Executive Order that all land and land under water within the limits of the Canal Zone is necessary for the construction, maintenance, operation, sanitation, or protection of the Panama Canal, and to extinguish, by agreement when advisable, all claims and titles of adverse claimants and occupants. Upon failure to secure by agreement title to any such parcel of land or land under water the adverse claim or occupancy shall be disposed of and title thereto




DISTRICT COURT FOR THE CANAL ZONE.

secured-in the United Statesand compensation therefor fixed and paid in the manner provided in the aforesaid Treaty with the Republic of Panama, or such modification of such Treaty as may hereafter be made.
Iii other words, this provision of the Panama Canal Act says that private property is to be taken pursuant to the provisions of the treaty, and the treaty does not require compensation to be paid in advance to private owners, but, on the contrary, expressly provides that the work shall not be prevented or impeded by reason of the failure to make such compensation in advance.
This, therefore, must be said to be the law in the Canal Zone, not only by virtue of the provisions of the treaty, but by virtue of the provisions of the Act of Congress, acting in its lawmaking capacity, and expressly recognizing the provisions of the treaty as the law applicable in such cases.
The right of private property is, of course, inviolable and such property can not be taken for public use without just compensation, and the Executive Order of May 9, 1904, recognizes this sacred and inalienable right. The Executive Order states:
The inhabitants of the Canal Zone are entitled to security in their persons, property, and religion, and in all their private rights and relations.
But while this is so, the time and the means for obtaining such compensation must be looked upon more in the nature of a method or process in the administration of justice. This would appear to be the view taken by the Attorney General of the United States in his letter of January 22, 1914, to the Secretary of War, wherein he states as follows:
The Panama Act, however, in thus authorizing the President, expressly provided that the compensation for lands taken should be fixed and paid in the manner provided in the treaty, and the treaty expressly provided that this compensation should be appraised and settled by a joint commission appointed by this country and Panama. It is true that thetreaty also provided that the work on the Canal should not be prevented "by or pending such proceedings to ascertain such damages," and that this provision, by reason of the Panama Act, and the Executive Order of the President, is extended to all the lands within the Zone. Nevertheless, it may be claimed, on respectable grounds, that this provision contemplated a tribunal, ready to adjudicate all claims for such damages, as an essential part of the procedure, and did not intend to permit this Government, by a failure to appoint its quota of the Commission, to take'lands without affording any real chance of a judicial arbitrament at any time upon the compensation to be paid. In other words, this provision of the treaty may have been inserted in view of the rule of Constitutional Law that compensation for land taken in condemnation proceedings need not be paid in advance, provided some impartial tribunal is secured before whom claims may be presented, and may have been inserted, therefore, in order to secure the continuous presence of such an impartial tribunal.
This was also the view that the writer of this opinion expressed in the case of Rangel vs. Feuille and Johannes, 2 C. Z. Rep. 317. It was there stated:




LAPORT, ADMINISTRATRIX-, V. PANAMA R. R. CO.

Can, therefore, the United States claim the benefit of the treaty provision not to be impeded, hampered, or delayed in its work on the Canal, in other words, not to be required to make just compensation in advance of the taking of private property, without itself complying with the corelative obligation provided for by the treaty, to maintain a Joint Commission for the consideration of the rights of owners whose property is taken? The Republic of Panama has now two members of said Commission appointed and ready to act in the premises, but the Commission has practically ceased to exist since November last because of the failure of the United States to appoint members thereof pursuant tothe express requirements of thetreaty. Can the United States therefore, by its own act of recalling its commissioners or failing to appoint others pursuant to the provisions of Article 15 of the treaty, thereafter claim the corelative benefits of the treaty, which should go hand in hand with the corelative obligation of maintaining a Commission for the consideration of claims for damages to private property?
The injunction was granted in that case because of the existence of the above stated facts, viz: That there was no commission in existence at that time, and while the views therein expressed are still adhered to and are still considered sound by the writer thereof, and would seem to have met with the complete approval of the Attorney General as set forth in his letter above quoted, nevertheless, the clear intimation of all who have passed upon this question would seem to be that where there is such a Commission constituted and ready for the transaction of business, that the authorities could not be enjoined for taking property in advance of compensation merely because of the time required by the Commission to reach and decide the claimants' individual cases.
The Supreme Court of the Canal Zone, in its opinion rendered in the appeal of the Rangel case, stated as follows:
In our opinion there could be no arguable basis for the temporary injunction were it not for the fact that at the date of the entry of the decree the Joint Commission was not in existence. *
* *
* In view of the foregoing it is apparent that the organization of the Joint Commission has rendered unnecessary the consideration of any question of law raised by the appeal.
For the reasons stated, it follows that the application for injunction must be and the same is hereby denied.
LAPORT, Administratrix, versus PANAMA RAILROAD CO.
(District Court, Canal Zone, Cristobal Division, April 1, 1915.) Civil No. 52.
1. ALIENS. JURISDICTION. NEXT. OF KIN. ILLEGITIMATES. SUCCESSION.
Action brought by the plaintiff, administratrix of the estate of Albert Laport,
deceased, to recover damages for the death of Albert Laport while acting as an employee of the defendant resulting from the defendant's negligence. It appears that Albert Laport was an alien, a subject of Grate Braten ,and the




DISTRICT COURT FOR THE CANAL ZONE.

illegitimate son of Aggelia Druell, alias Ella Laport, an alien; that the plaintiff is a sister of the deceased; and that the action is brought for the benefit of the, plaintiff and the mother. The action is brought under the Federal Employers'
Liability Act. It is held:
1. That in view of the fact that the death of Albert Laport occurred in the Canal
Zone, and that the defendant conducts business and has property in the Canal
Zone, that this court has jurisdiction of the action.
2. That under the provisions of article 1050, p. 228, of the Civil Code of Panama,
in force in the Canal Zone, the illegitimacy is no bar to inheritance from the
deceased.
3. While the word"child" or "children" used in the statute or law means, prima
facie, legitimate child or children, and while it is usually held that no action can be maintained for the death of an illegitimate child, yet in jurisdictions where illegitimacy is not a bar to inheritance, such an action may be maintained, especially if brought through an administrator for the benefit of the next of kin, and where such illegitimate relatives are regarded by statute as such next of kin; distinguishing the case of P. R. R. Co. vs. Vreeland, 227 U. S., 59.
Attorney for plaintiff, Ernest Best.
Attorney for defendant, Charles R. Williams.
JACKSON, District Judge. The plaintiff, as administratrix of the estate of Albert Laport, deceased, seeks to recover damages in the sum of $10,000, arising out of the death of the said Albert Laport while acting as an employee of the defendant company on or about the 27th day of March, 1914.
It is alleged that the death was the result solely of negligence and carelessness on the part of the defendant company, and the action is brought by such administratrix to recover damages under and pursuant to the provisions of the Federal Employers' Liability Act of April 22, 1908.
The defendant interposes an answer to the effect that the deceased, Albert Laport, was a native of the island of St. Lucia, British West Indies, and a subject of Great Britain, and that he was the illegitimate son of Aggelia Druell, alias Ella La Porte, who was also born on the Island of St. Lucia. To this answer the plaintiff interposes a demurrer.
It appears that the plaintiff, Ella Laport, is the sister of the deceased, and Aggelia Druell the mother of the deceased and the action is brought by the administratrix on behalf of said mother and sister as next of kin, dependent upon the deceased.
The two questions raised by the demurrer to the answer are, first, as to the right of aliens to recover in the courts of the Canal Zone for damages resulting from the death of an employee, and, second, as to the right to maintain such action on behalf and for the benefit of illegitimate parents or next of kin.
As to the first proposition it must be said that it was decided in McGovern vs. Philadelphia R. R. Co., 209 Federal Reporter, 975, that




LAPORT, ADMINISTRATRIX, V. PANAMA R. R. CO.

"a foreigner, resident of his native country, can not be considered a* beneficiary of the provisions of the Federal Employers' Liability Act, and that hence an action can not be maintained by the administrator of a deceased railroad employee, whose death occurred while he was engaged in interstate commerce, for the benefit of deceased's father and mother, who were subjects of Great Britain and residents of Ireland."
"It is not to be presumed," said the Court, "that Congress intended to legislate for the benefit of persons residing out of the jurisdiction of the State and Federal laws., The right to recover damages for death, is not a right at common law, and, when Congress undertakes to impose a liability upon interstate carriers for the benefit of their employees and relatives of their employees in case of death through the carrier's negligence, in the absence of any provision to the contrar y in a treaty or act of Congress, it must be presumed that such benefits are not intended for nonresident aliens."
This is undoubtedly a sound and salutary principle of law as applied to conditions prevailing in the States, but to apply the same to conditions here prevailing as to citizens or residents of the Republic of Panama who sought relief in our courts against companies or individuals doing business in the Canal Zone, we think would be manifestly unfair and would not be in accordance with the spirit of the treaty between the United States and the Republic of Panama. If such a rule were enforced here it would result in manifest hardship and even an absolute denial of justice. The residents of the Republic of Panama have always been. accorded the right to resort freely to our courts in causes of action ari si ng within our territory and this seems to be recognized not only by the treaty existing between the two Governments, but by Section 1 of the Executive Order of July 28th, 1910, which would seem to give to alien nonresidents of the Canal Zone the right to institute transitory actions in our courts provided that the cause of action arose within -the territorial limits of the Canal Zone Government, or the party proceeded against has property therein subject to the jurisdiction of the Canal Zone court.
In this case it will be remembered, the cause of action is alleged to have arisen in Cristobal, Canal Zone. The defendant operates a railroad and has property within the Canal Zone, and the mother and sister of the deceased, although illegitimate, have continuously resided in Colon, Republic of Panama, since the year of 1907.
As to the second proposition, the Federal Liability Act of April 22, 1908, provides that common carriers by railroad shall be liable in damages to any person suffering injury while employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then to such employee's parents; and, if none, then to the next of kin dependent upon such employee * *




DISTRICT COURT FOR THE CANAL' ZONE.

And it must be conceded that it is a well-recognized rule of construction that prima face, the word "child" or "children" when used in statutes means legitimate child or children and that bastards are not within the meaning of the term, and therefore, where parents are given a right of action for the death of a child, such action can not be maintained by a parent for the death of a bastard,. Accordingly it has been held by the courts of many States, and likewise by Federal Courts, that where, under the statutes, a parent sues directly to recover damages for the death of a child, recovery is not permitted for the death of an illegitimate child. But, this it will be noted, is in cases where actions are brought by the parent direct and not through an administrator for the benefit of the next of kin dependent upon the deceased.
In this case the deceased left surviving him neither widow nor children and the action is therefore instituted by the administratrix, as such, for the benefit of the next of kin dependent upon such employee. It is true that the illegitimate mother and sister appear to be the next of kin, and as such may be the sole recipients of any recovery that may be had. But, if illegitimates are permitted by statute to inherit from each other, it would seem that they must nevertheless be regarded as such next of kin. Article 1050, page 228 of the Civil Code of Panama, clearly gives the illegitimate mother and sister the right to inherit property left by the deceased if he dies without leaving legitimate heirs.
In Security Co. vs. West Chicago Street Railway Co., 91111. Appeals, 332, it was held that under a statute giving a right of action for death by wrongful act, for the benefit of the widow and next of kin of a deceased person, the mother had the right to recover for the negligent killing of her illegitimate child, where by statute she was permitted to inherit from her illegitimate child if it die without leaving children or surviving widow or husband. The same was held in Marshall vs. Wabash R. R. Co., 120 Missouri, 275: that since, by the statutes of the state, an illegitimate child was made capable of inheriting from its mother, and the mother of inheriting from the child, there could be no good reason why a mother should not be permitted to recover for the negligent killing of her illegitimate child.
In Muhl vs. Michigan Southern R. R. Co., 10 Ohio State 272, the Court said:
" since the negligent killing was admitted, and the action
was properly brought by the personal representative of the deceased as provided by statute, it could not be said that any cause for nonsuit existed; that, whether the illegitimate son of the deceased, or her sister, who was shown by the record to have been in court, was to be regarded as the next of kin, could in no wise affect the cause of action; that that question might be a very proper one in determining who in fact was the legal beneficiary and finally to be entitled to the fruits of the judgment, but that the right of action existed, by force of the statute, in the administrator."




LAPORT, ADMINISTRATRIX, V. PANAMA R. R. CO.

The conclusion would seem to follow that whereas it is a general rule of construction that prima fecie the word "child" or "children" used either in statute or a will means legitimate child or children, and it is usually held that no action can be maintained for the death of an illegitimate child, nevertheless, in jurisdictions where such mother and child, or brother and sister, are permitted to inherit from each other, such an action may be maintained, especially if it is brought through an. administrator for the benefit of the next of kin; and such illegitimate relatives are regarded by statute as such next of kin. This I do not consider to be in contravention of the rule announced by Mr. Justice Lurton in the case of Michigan Central R. R. vs. Vreeland, 227 U. S. 59, to the effect that:
A Federal statute upon a subject exclusively under Federal control must be construed by itself and can not be pieced out by state legislation and if a liability does not exist under the Employers' Liability Act of 1908, it does not exist by virtue of any state legislation on the same subject.
This is undoubtedly true as to any substantive and independent provision of state legislation that must be looked to to "piece out" or give a right under the Employers' Liability Act of 1908. But I am of the opinion that when that act itself, by its express terms, gives a right of action to the next of kin when there is no widow or husband or children surviving the deceased employee, that resort can be had to the local statutes for determining who are the next of kin, and if an illegitimate mother and sister under the local statutes in force in such jurisdiction can inherit, they may be considered as such next of kin. Especially is this so when, it must be remembered, Congress did not attempt to define who were to be considered the next of kin, but on the contrary, each State has its own statutory provisions in this regard and therefore Congress must be supposedto have had in mind "next of kin" as defined and prescribed by the different state or territorial jurisdictions.
The demurrer is therefore sustained.
LAPORT, Administratrix, versus PANAMA RAILROAD CO.
(District Court, Canal Zone, Cristobal Division, April 21, 1915.)
Civil No. 52.
1. LETTERS OF ADMINISTRATION. VALIDITY.
Letters of administration issued by the clerk pursuant to the authority and
direction of the court, are sufficient to enable the plaintiff to sue as administratrix.
2. ADMINISTRATION. BOND OF ADMINISTRATOR.
The order appointing the administratrix did not require a bond to be given.
Code of Civil Procedure, Sec. 678, requires that executor or administrator shall




DISTRICT COURT FOR THE CANAL ZONE.

give bond in such reasonable sum as the court directs. Held, that no bond having yet been required, the administratrix should not, for this reason, be
barred from maintaining an action.
3. FEDERAL EMPLOYERS' LIABILITY ACT. CONTRIBUTORY NEGLIGENCE.
The Federal Employers' Liability Act of April 22, 1908, abolished the defense
of contributory negligence. a
4. INHERITANCE. ILLEGITIMATES. NEXT OF KIN. DAMAGES.
MEASURE OF.
Albert Laport was killed as a result of the negligence of the defendant while in the
course of his employment by the defendant. He was the illegitimate son of Aggelia Druell, alias Ella Laport, and the plaintiff in this action is his illegitimate sister. Held:
1. That the illegitimate sister is not entitled to inherit from the deceased.
2. That the illegitimate mother is entitled to inherit from the deceased.
3. That the deceased being 3 years and 2 months under the age of majority, that
the mother had no expectation of receiving support from him after he attained his majority and could not, therefore, recover damages for loss of
maintenance after the deceased would have reached the age of 21 years.
Attorney for plaintiff, Ernest Best.
Attorney for defendant, Charles R. Williams.
JACKSON, District Judge. On August 5, 1914, an order of the District Court of the Cristobal Division was duly made and entered appointing the plaintiff, Ella Laport, administratrix of the estate of Albert Laport, deceased. It is nevertheless insisted.by counsel for the defendant that the letters of administration issued upon said order being signed by the clerk of the court instead of the judge thereof, the plaintiff is not entitled to sue as administratrix. We think the order of appointment and the letters of administration issued by the clerk, under and pursuant to authority and direction of the Court, are sufficient to enable plaintiff to sue as administratrix.
It is further insisted that there has been no compliance with sections 677 and 678 of the Code of Civil Procedure of the Canal Zone in that no bond has been given by the administratrix as such. However, the order of appointment does not require a bond to be given. It is silent in this respect, and section 678 requires that the executor or administrator "shall give a bond in such reasonable sum as the Court directs." It may be that prior to receiving and disbursing any funds a bond may be required in the future, but as yet no bond having been required, it would seem that the administratrix should not, for this reason, be barred from instituting an action.
This brings us to a consideration of the merits of the case. The facts as developed at the trial show that the deceased, Albert Laport, was employed by the defendant as a helper on switch engine No. 302, operating in the yards of the defendant company at Cristobal, and that




LAPORT, ADMINISTRATRIX, V. PANAMA R. R.. CO.

as such, it was his duty to ride on the footboard in front of such engine in such a position as would enable him to observe and see the track ahead and so safely pilot the said engine. On the morning of the 27th of March,.1914, about 4.20 a. in., while riding on the footboard in front of said engine which was proceeding in a southerly direction upon a southbound switch track, at Cristobal, Canal Zone, and in the neighborhood of the Defendant Company's paint shop, there was a collision with a train proceeding north upon the same track propelled by engine No. 9 pushing two cars, and as a result of such collision, Albert Laport received injuries from which he shortly thereafter died.
The testimony of one Creighton who was riding with the deceased on the footboard at the time of the collision was to the effect that there was no light of any kind upon the forward car which was proceeding northerly along the southbound track, so that the approach of this car pushed forward by engine No. 9 could not be seen in the darkness in time to avoid a collision. That the known custom and usage with respect to the use of that track was such that engines and cars proceeding north thereon were expected to car-ry lights on the forward car as a precautionary measure so as to be able to warn the engineer of approaching danger. The engineer of engine No. 302 also testified that there was no light on the approaching train. The engineer on engine No. 9 testified that before starting northward on this southbound track, he directed a man with a lantern to go on top of the cars but that he received no signal from him of the approach of engine No. 302.
From the direct evidence of Creighton and the engineer of engine No. 302, and the statement of engineer on engine No. 9, that he received no signal, it is reasonable to infer that there was no one with a light on the forward end of the car. In fact the preponderance of the evidence decidedly so indicates, especially as the defendant offered no evidence whatsoever in its behalf. Such being the case, it must be said that the defendant, in proceeding northerly on this southbound track without a light on the forward car, was lacking in that degree of care and prudence which the law requires, and that this neglect was at least in part responsible for the death of Albert Laport.
The defense of contributory negligence could not be urged even as a fact in the case, nor as a matter of law. The Employer's Liability Act of April 22, 1908, had as one of its objects, the abolishing of the defense of contributory negligence. This therefore brings us to consider the question of damages.'A
The act above referred to provides that the common carriers by railroad therein referred to "shall be liable in damages to any person suffering injury while employed by such carrier in such commerce, or,
A [EDITOR'S NOTE]. See 35 Stat. 65; T. & A. 46, Sec. 3, for correct statement of the

MR 97966-3




DISTRICT :COURT FOR THE CANAL ZONE

in case of the death of such employee, to his or her personal repre-L tentative, for the benefit of the surviving widow, or husband and children of such employee; and if none, then to such employee's parents;, and if none, then to the next of kin dependent upon such employee."
Albert Laport left surviving him neither widow nor children and the action is instituted by his illegitimate sister for the benefit of herself and the illegitimate mother of the deceased as the next of kin. it would seem that the amount of recovery herein must be exclusively for the benefit of the mother of the deceased inasmuch as the law provides that only upon failure of the parents, shall recovery be for the next of kin. That is, a sister would be regarded as a next of kin and could benefit by the action only in the event there were no parents. The amount, therefore, recovered by the administratrix in this case, must be for the benefit of the surviving mother of the deceased.
It is well-settled law that in actions of this kind instituted for the benefit of the widow or children, they are entitled to recover damages based upon the life expectancy of the deceased. That is, having a legal right and natural expectation of support, they are entitled to compensatory damages for being deprived of that legal right and expectation; and in such cases, the measure of damages is such as the Court or jury may find they would have received from his earning Icapacity had he lived the ordinary span of life.
However, when there are neither widow nor children, and the action. is instituted for the benefit of a parent or next of kin, courts have been guided by other rules. It was held, for instance, in Deninger vs. American Locomotive Co., 185 Federal Reporter, page 23, as follows:
Under the Pennsylvania Act of 1855 authorizing parents to recover for the wrongful killing of their minor children, they could not recover for loss of expected contributions by the deceased after he would have attained his majority. .This seems to be a reasonable interpretation of the law. The wife and children naturally have a right to expect support and maintenance As long as the father and husband may live, but not so with the parents, as it is only reasonable to suppose that after attaining majority, a man will marry and incur the sacred obligations of providing for his own family. Furthermore, while the law requires a man to support his wife and children, there is no such legal requirement as regards his parents after attaining majority. His earnings during, minority belong to his parents but not after majority. This is the general rule of law and I find nothing in the Code of the Canal Zone or the Civil Code of Panama to the contrary. The provisions of the latter on page 102 thereof, cited by counsel for the plaintiff, do not seem to support the contention that a son is under a legal obligation, however strong may be the force of the moral obligation, to give his earnings to his parents af ter attaining




REPUBLIC OF COLOMBIA, et al., V. FAJARI)O H., et al.

majority. In Deninger vs. American Locomotive Co., above cited, on' page 34, it is saidIf the family relation exists at all, either by operation of law or by the conduct of' parties and if there is a reasonable expectation of its continuance, the proposition. might be easily supported that compensation can only be adequate when it redresses the actual injuries to such expectation.
And so, in Pennsylvania R. R.* vs. Adams, 55 Penn. 499, where the son. was 26 years old and the family relation actually existed at that time, that is, the son was actually living with and contributing to the support of the family at that age, it was held that recovery could be had, based upon the reasonable expectation that such would continue. This seems to be. the rule laid down in English cases. But where a son meets his death before majority, it has equally been held in a number of cases that then there does not exist, as a matter of fact, that reasonable expectation of a continuance of the support after majority which the, law requires. So, it must be said in this case, the legal expectation of support, from the date of the death of the deceased, was but little over three years. The deceased was killed inMarch, 1914, and would have", been 18 in two months thereafter. In computing damages for wrongful; death it is a settled principle of law that there can be no compensation for mental grief and suffering, for lacerated feelings or disappointedhopes, for the law can not 'compensate these in money, but allows onlypecuniary damage for the pecuniary loss.
This loss is the reasonable expectation from the earning capacity and, the expenses attendant upon the injury and the funeral. No proof was; made as to what, if any, expense was incurred by the family of the deceased for medical attention and for the funeral. Therefore, we are not permitted to conjecture as to this, but, looking solely at the deceased's strength, health, ability, and earning capacity at the time of his death, and the probability of its continuance and increase up to the time of his majority, the Court finds a pecuniary loss resulting from his death in the sum of 'nine hundred and fifty ($950) dollars., I It is THEREFORE ORDERED that the plaintiff have and recover of and from the defendant, for the benefit of the mother of the deceased, the 'said sum of nine hundred and fifty ($950) dollars, and all costs: herein.
THE REPUBLIC OF COLOMBIA, et al., versus FAJARDO H., et al,
(District Court, Canal Zone, Balboa Division, May 6, 1915.) Civil No. 105.
1. PRINCIPAL AND AGENT. RIGHT OF ACTION.
Where F stole funds from G, who is described as Postal Agent of the Republic of
Colombia, F being G's employee, it is held that G can maintain an action
therefor without joining the Republic of Colombia.




DISTRICT COURT FOR THE CANAL ZONE.

2. PRINCIPAL AND AGENT. RIGHT OF ACTION.
Where F was Postal Agent of the Republic of Colombia an 'd while acting as such
embezzled its funds, it is held that G, his successor in office, can not maintain an action for recovery thereof.
3. ATTACHMENT. MONEY IN CUS7'ODIA LEGIS.
Money of defendant deposited as bail in a criminal action may be attached after
the dismissal of the action. Funds deposited with an officer of the court are attachable when the purpose of the legal custody has been encompassed and
the only duty of the officer having it in custody is to pay it to the depositor.
Attorneys for plaintiffs, Hinckley afid Ganson. Attorney for defendants, Felix E. Porter.
JACKSON, District judge. The Republic of Colombia has been withdrawn as a party plaintiff to the complaint herein on motion of the plaintiff's attorney for the reasons stated "that it will not in any manner submit itself to the jurisdiction of the Canal Zone courts owing to the fact that it does not in any manner recognize sovereignty of the United States of America, over a Department which Colombia claims to be its own territory." This leaves the action pending solely between Eduardo Espinosa Guzman in his capacity as Postal Agent of the Republic of Colombia against the defendants Fajardo and de la Guardia, and being so considered it must be held that the plaintiff has no right to institute the action set forth in the second count thereof for the reason that it appears that the defalcations referred to in said second count of the complaint were committed by the defendant Adolfo Fajardo H. at a time when he was acting as the Postal Agent of the Republic of Colombia in the City, of Panama; that is, from the I11th day of June, 1913, up to and including the 31st day of December, 1914. It would seem to follow necessarily from the allegations contained in said second count of the complaint that any moneys alleged to have been stolen by Fajardo during the period of time referred to therein were necessarily stolen by him directly from the Republic of Colombia, and, therefore, it must necessarily follow that the plaintiff in his capacity as Postal Agent of the Republic of Colombia has no standing to sue for the recovery thereof. Any action of recovery for the sum therein set forth, namely $5,913.11, must be instituted by the Republic of Colombia, acting through its duly authorized agents therefor, unless it should appear that the plaintiff has, upon well-recognized principles of law, been subrogated to the rights of the Republic of Colombia. It does not, however, appear in any aspect of the case that the plaintiff has been subrogated to any r ights of Colombia, and, therefore, it follows that the demurrer, in so far as it relates to the second count of the complaint, must be and is hereby sustained.
With reference, however, to the first count of the complaint, it seems airly inferable from the allegations thereof, giving to the pleadings that




REPUBLIC OF COLOMBIA, a l. V. FAJARDO H., et al.

liberality of construction required by our. Code, that. the alleged thefts were committed by the defendant Fajardo from the plaintiff Guzman in his capacity of Postal Agent of the Republic of *Colomnbia. The said first count of the complaint alleges that the plaintiff was at all the times therein mentioned the Postal Agent of the Republic of Colombia, and that as such he was accustomed to pay to the Panama Railroad Company direct, or through the defendant Fajardo, certain sums for carrying the mails, and that the said Fajardo "was an employee of the plaintiff in his capacity as Postal Agent of the Republic of Colombia," and also that his alleged payments to the Panama Railroad Company were made "for the account of the plaintiff in his said capacity as the Postal Agent of the Republic of Colombia." Also "that there is now due and owing to the plaintiff in his capacity as Postal Agent of the Republic of Colombia the sum of $3,469.42. From all of which it is reasonable to infer that the sum in question was stolen from the plaintiff individually, who merely describes himself as the Postal Agent of the Republic of Colombia, and that it was not stolen from the Republic of Colombia itself. Therefore, it would follow, if these facts can be sustained, that the plaintiff individually would have the right of recovery therefor, and it must, therefore, follow that the demurrer to the first count of the complaint must be and is, hereby overruled.
Coming now to consider the motion to discharge the attachments upon the ground that the moneys were deposited with the Clerk of the Court for the appearance of Fajardo in the criminal proceedings pending against him; the said criminal proceedings have been dismissed and the bond canceled, and, therefore, there is nothing devolving upon the Clerk except the ministerial duty of refunding the $4,000 deposited as bail. It seems clear that under such circumstances moneys primarily deposited in court can be attached. See Dunsmoor vs. Furnestanfeldt, et al., 12 L. R. A., 5 10. Also Weaver vs. Davis, 47 Ill. 235 wherein it is held:
If: the object for which such funds are held has been satisfied, then such officer holds the balance of such funds not as an officer of the court (nor is such balance in custodia legis), but as trustee for the person entitled to receive such balance, and in a suit against such person such trustee may be garnisheed.
Also LeRoy vs. Jacobosky, 67 L. R. A., 977 as follows:
The proceeds of a judicial sale of lands, confirmed by the court, which are held subject to the immediate demand of the party entitled to them, are subject to attachment by his creditors in the hands of the Clerk of the Court.
Also Wilbur vs. Flannery, 60 Vt., 581 as follows:
It has been held that in Vermont that money in the possession of the clerk of the court, paid to him under decree of the court of chancery, is attachable on trustee process when the purpose of the legal custody has been accomplished, and the only duty of the clerk is to pay the amount to the defendant.




DISTRICT COURT FOR THE CANAL ZONE.

Also LeRoux vs. Boldus, 13 S. W. (Tex.), 10 19, as follows:
It has been held in Texas that where funds of a defendant are held by the clerk of the court to await the determination of the action, out of which a judgment against the defendant is satisfied, the defendant is entitled to the immediate possession of the surplus, without any order of the court, and that, therefore, such surplus in the possession of the clerk is subject to garnishment at the suit of defendant's creditors.
And following the broad general principle in the case of Marine Nat. Bank vs. Whitman Paper Co., 49 Minn., 143, as follows:
Money held by the clerk of a court, but not under order of court, is subject to garnishment.
From the foregoing well-settled principles of law as applicable to the facts of this particular case it follows that the motion to discharge the attachment must be and is hereby overruled.
BRESSIE, el al., versus GOETHALS, el al.
(District Court, Canal Zone, Cristobal Division, May 24, 1915.)
Civil No. 84.
JURISDICTION. MOTION TO DISMISS.
Plea to the jurisdiction and motion to dismiss, will be treated as a demurrer to the
plaintiff's compla int.
JURISDICTION. INJUNCTION.
In action brought by plaintiffs claiming to be the owners of land situated in. the
Canal Zone, to enjoin destruction of improvements on property and forcible dispossession of the plaintiffs, it appearing that the plaintiffs have presented a claim to Joint Commission, and that the prosecution of such claim is an exclusive remedy, held that the court has no jurisdiction of the action.
-3. JURISDICTION. TREATIES.
Under provisions of treaty between the United States and the Republic of Panama, and the Panama Canal Act and the Executive Order of December 5, 1912, where it appears that a joint Commission as provided in said treaty has been constituted, held that all property in the Canal Zone is necessary for Government purposes, and the, rights of former owners thereof must be adjudicated
exclusively before the Joint Commission provided for in the treaty.
4. EXPROPRIATION. CONFLICT OF LAWS.
The provision in the treaty between the United States and the Republic of
Panama, that the United States may take possession of all the property in the Canal Zone without payment of compensation in advance, does not violate the "due process" clause of the Constitution of the United States or the. Constitution of the Republic of Panama.
S. EXPROPRIATION.
Act No. 21 of the Laws of the Canal Zone, providing a method of expropriation
proceedings, does not provide a remedy available to the plaintiffs as against the




BRESSIE, et at., V. GOETHALS, et al.

provisions of the Panama Canal Act and of the treaty between the United States and the Republic of Panama,. but the compensation to be pa Iid is to be
fixed by a Joint Commission under the provisions of said tr Ieaty.
6. PLEADINGS. DEMURRER. SURPLUSAGE.
Unnecessary allegations of a pleading, such as those which are contrary to facts
of which judicial notice is taken, and are not admitted by a demurrer, are to be
disregarded.
7. LEASES. PRIOR LAWS. NOTICE TO LESSEES.
Where it appears that the plaintiffs leased the property in question in 1911,
such lessees were bound by the provisions of the treaty between the United
States and the Republic of Panama, which was ratified prior to that date.
Attorneys for plaintiffs, Fairman, MacIntyre, and Enderton.
Attorneys for defendants, Frank Feujille and Walter F. Van Dame.
JACKSON, District judge. The Court having heretofore overruled the plaintiff's motion to dismiss the plea to the jurisdiction of the court, filed by the defendants herein, the question now arises -upon said plea. to the jurisdiction and upon the oral 'motion of the defendants to dismiss the bill of complaint. The said plea to the jurisdiction and the motion to dismiss, will, therefore, be considered as a demurrer to the bill.
This case is in all substantial respects analogous to that of the case of Dixon, et al., vs. Goethals, et al (decided March 15, 1915), in which this Court denied the application for the injunction, and which ruling was affirmed by the United States Circuit Court of Appeals for the Fifth Circuit sitting at New Orleans (221 Fed., 1021). The said Circuit Court of Appeals in dismissing the plaintiffs' appeal to that court stated as follows:
It will be added that an investigation of the record and of the law applicable to the state of facts disclosed has led the court to the conclusion that if the action of the lower court which is complained of had been duly presented here for review, it could not properly be held to be subject to reversal at the instance of the parties complaining of it.
It follows that the restraining order heretofore issued in this case is vacated and annulled, and a mandate may issue at once.
The views of this court were fully set forth in the case of Dixon vs. Goethals, and there now remain for consideration in the present case several propositions not advanced or so clearly set forth in the former case. The plaintiffs allege that their property will be destroyed by the Canal Zone police force and they forcibly dispossessed of the same for the purpose of allowing the Texas Oil Company and other oil companies to erect oil tanks for their own private profit and gain, and that at-the time of the filing of the complaint herein the employees of the, said Texas Oil Company,, by authority of the Panama Railroad Company or Qf the Canal Zone Government, had entered and trespassed upon the




DISTRICT COURT FOR THE CANAL ZONE.

property of complainants. The complaint further alleges in paragraph 9 thereof -"that the threatened acts of the respondents are not being done in connection with any work in. connection with the construction, maintenance, sanitation, or protection of the Panama Canal, but for the benefit and profit of the Texas Oil Company and other private corporations and persons to your orators now unknown." It is the contention of the complainants that these allegations distinguish the case at bar from the Dixon case so that the burden is upon the defendants to show affirmatively that the taking of the property in question is being done in conformity with the Panama Canal Treaty, Panama Canal Act, and the Executive Order of the President of December 5, 1912.
In French vs. Senate, 146 California, page 607, it was held that "those allegations of a pleading which are not necessary, and which are contrary to the facts of which judicial notice is taken, are not admitted by a demurrer, but are to be treated as a nullity."
And in People vs. Oakland Water Front Co., 118 California, page 245, it was said:
Why should a general demurrer to a complaint be overruled and the 'parties required to proceed to the trial of an issue of fact when the court, looking to a law of which it is bound to take notice, can clearly see that one of the essential allegations of the complaint can never by any legal possibility be proved? What useful or desirable end could be attained by shutting its eyes to the certain event of the fitigation and putting the parties to the trouble, delay, and expense of framing and preparing to try issues which can have no influence upon the final result? The question then arises, are the allegations with reference to the Texas Oil Company at variance with laws, public orders, and facts of which this court is bound to take judicial notice? Section 6 of the Panama Canal Act provides in part as follows:
The President is also authorized to establish, maintain, and operate, through the Panama Railroad Company, or otherwise, dry docks, repair shops, yards, docks, wharves, warehouses, storehouses,'and other necessary facilities and appurtenances for the purpose of providing coal and other materials, labor, repairs, and supplies f or vessels of the, Government of the United States and, incidentally, for supplying such at reasonable prices to passing vessels, in accordance with appropriations hereby authorized to be Made from time to time by Congress as a part of the maintenance and operation of the said Canal.
Furthermore, through Executive Order of the President of the United States, and also through orders promulgated by the Governor of The Panama Canal, it is well known th at the Government, by virtue of of the above provision, has embarked in the enterprise of furnishing oil and other materials to passing vessels through the medium of private concerns. Furthermore, as has heretofore been stated in the Dixon case; the Panama Canal Act in Section 3 thereof expressly provided that the President was authorized to declare by Executive Order that all land and land under water within the limits of the Canal Zone is necessary f or governmental purposes, and, pursuant to said provision,




BRESSIE et al. V. GOETHALS el al.

the President, by Executive Order of December 5, 1912, has so declared. Therefore, to call for proof as to the facts stated in the plaintiffs' bill of complaint would require the court to shut its eyes to the above cited provisions of the Panama Canal Act and the Executive Order referred to, as well also as to the well-known and publicly declared policy of the Government in this respect. When the President, acting under proper authority, has declared all property in the Canal Zone to be necessary for government purposes, and a Joint Commission has been constituted by the Governments of the United States and -of Panama to determine the amounts to be paid for all such property, and the plaintiffs themselves, recognizing these facts, have filed their claim before said Commission for the value of their property, how in equity and common sense can it be said that the taking of the property is a taking for a private and not a governm .ental purpose, and what useful purpose could be subserved by putting the defendants to proof of a fact, of which the court is bound to take judicial notice?
Moreover, in the present case the complainants reiterate with much force and learning the arguments propounded in the Dixon case to the effect that the taking of the property by the Government, without compensation in advance, is without due process of law, and is in vio-7 lation alike of the Constitution of the United States and of the Constitution of the Republic of Panama; but this question has been given due consideration by this court, not only in the Dixon case but in the Rangel case, and it only remains to repeat the view of this court that the establishment and the maintenance of the joint Commission provided for by the treaty constitute the necessary process of law. This view has frequently been held in decisions of the highest authority and by eminent text writers. In Cooley's Constitutional Limitations, page 813, it is stated:
When the property is taken directly by the State, or by municipal corporation by State authority, it has been repeatedly held not to be essential to the validity of a law for the exercise of the right of eminent domain, that it should provide for making compensation before the actual appropriation. It is sufficient if provision is made by the law by which the party can obtain compensation, and that an impartial tribunal is provided for assessing it. The decisions upon this point assume that, when the State has provided a remedy by resort to which the party can have his compensation assessed, adequate means are afforded for its satisfaction; since the property of the municipality, or of the State, is a fund to which he can resort without risk of loss.
To the same effect this court again calls attention to the ruling of the Attorney General of the United States in the Rangel case wherein it was said, "In other words, this provision of the treaty may have been inserted in view of the rule of constitutional law that compensation for land taken in condemnation proceedings need not be paid for in advance, provided some impartial tribunal is secured before whom claims may be presented, and may have been inserted, ther 'efore, in order to secure the continuous presence of such an impartial tribunal."




DISTRICT COURT FOR -TEE CANAL ZONE.

Therefore, I repeat that the impartial tribunal provided for by the treaty having been secured, and the treaty expressly providing that 4no part of the work of said Canal shall, be prevented, delayed, or impeded by or pending such proceedings to ascertain such damages," that the property holders of the Canal Zone are afforded their legal remedy and that they are not deprived of due process of law by a failure to make compensation, to them ~in advance of the taking, but that their rights are secured by the privilege of appearing before said joint Commission. Furthermore, it appears in the complaint in this case that the complainants leased the property in question on June 2, 1911, from the Bracho family. This was long after the promulgation of the treaty, and parties leasing or purchasing property and making improvements thereon must, in contemplation of law, have been familiar with the provisions of the treaty referred to.
As to the provisions of Act Number 21 of the Laws of the Canal Zone, providing a method of expropriation proceedings in cases where the United States or the government of the Canal Zone may desire to condemn certain private property for public uses it must be said that this law was enacted by the Isthmian Canal Commission on December 30, 1904, and it evidently had reference to property which had not theretofore been considered or declared necessary for Canal purposes. But it can not have a superior force or binding effect over the Panama Canal Act which provides that all property within the Canal Zone may be declared necessary for Canal purposes, and that the title thereto shall be secured in the United States and compensation therefor fixed and paid in the manner provided in the aforesaid treaty with the Republic of Panama. In the consideration of this case we must be guided by the provision of the Panama Canal Act of August 24, 1912, the provision of the Executive Order of the President of December 5, 1912, and by the provisions of the treaty, and in so doing it clearly appears that the plaintiffs are not entitled to the injunction. herein prayed for, and that the, defendant's plea to the jurisdiction, and the motion to dismiss the bill of complaint, must be and are hereby granted.
[NOTE]. See Dixon vs. Goethals, 221 Fed., 1021, and Reina vs. Bracho, 256 Fed., 834.
McEWEN versus NEVILLE.
(District Court, Canal Zone, Balboa Division, September 10, 1915.) Civil No. 51.
1. EMPLOYER AND EMPLOYEE. SUIT FOR WAGES. ACCOUNTING.
OFFSET.
Where an employee sues his employer for wages and the evidence shows the
employee has received some cash from his employer held,




MCEWEN V. NEVILLE.

1st. It will be presumed, in the absence of a showing to the contrary, that such
cash payments were to be applied on wages, and the same will be applied
accordingly.
2d. The employee can not offset against such cash payments accounts of certain
merchants for goods properly chargeable to the employer without showing that
the employee has paid such accounts.
Attorneys for plaintiff, V. E. Bruno.
Attorney for defendant, Fabrega and Arias.
JACKSON, District Judge. *rhis action is one for wages wherein the plaintiff seeks to recover from the defendant the sum of $411.59 United States currency on account of wages and commissions due him in connection with services rendered on the defendant's farm at La Chorrera in the Republic of Panama. In the sum of $411.59 was included in the complaint a demand for $193.20 by way of commissions estimated at 20 per cent of the amount of the product reaped and sold from the defendant's said farm. However, at the trial of the case the claim for commissions was abandoned and the action proceeded as one for wages at the rate of $28 per month from May 1, 1914, to January 1, 1915. The defendant denies all indebtedness on his part to the plaintiff, and, on the contrary, claims that there is due him, the defendant, from the plaintiff, the sum of about $500 United States currency on account of the fraudulent manner in which the plaintiff kept the accounts, and particularly the accounts relating to certain tradespeople from whom goods were purchased presumably for the use of the farm.
The evidence revealed the fact that in April, 1911, the plaintiff and defendant entered into a verbal contract by which the plaintiff was to take over the management of the defendant's plantation at La Chorrera, and for the services of himself, his wife and son, he was to receive $28 per month. However, it seems to have been assumed that the $28 per month would be derived from the sale of the produce of the farm. In the conduct of the management of the farm the plaintiff opened accounts with several tradespeople in Chorrera, among them several Chinese merchants, from whom the plaintiff bought- and charged as against the defendant from time to time many articles presumably intended for the use of the plantation. However, a careful investigation of these accounts with the Chinese merchants, aided by the evidence adduced at the trial, has convinced me that many of the articles purchased were not intended for the use of the farm but for the plaintiff's own personal use. There are items purchased from one Chinese merchant in the sum of $31 and charged against the defendant which appear particularly and unmistakably to have been for the sole personal use of the plaintiff. The evidence also discloses that there were many outstanding bills as against the defendant which the plaintiff




DISTRICT COURT FOR THE, CANAL ZONE.

claims were obligations for which the defendant should respond to him, the plaintiff, but as these outstanding accounts were not paid by the plaintiff it is difficult to see how they can be considered as an obligation against the defendant and in his favor.
It further appears that from June to, and inclusive of, October, 1914, the plaintiff received from defendant the following sums of money: In June, $50 United States currency, in July, $210 United States currency, in August, $50 United States currency, in September, $80 United States currency, in October, $80 United States currency, and that in September he derived from the sale of oranges the sum of $22 United States currency; making in all a total of $492 United States currency. The contract of employment between the plaintiff and defendant was such that plaintiff would be presumed to have received his salary out of these cash payments made to him by the defendant and out of the sale of the proceeds of the farm unless a contrary showing is made to appear. However, the plaintiff does not account in a satisfactory manner for the cash sums received by him from the defendant so as to preclude the presumption that they were sufficient to pay his salary after defraying the other expenses of the plantation. The attempt on the part of the plaintiff to offset, as against this, certain outstanding bills of certain tradespeople is not sustained because of the fact, in the first place, as before stated, many of the articles purchased seem to have been for the personal use and benefit of the plaintiff alone, and also because the outstanding bills have not been paid by the plaintiff but, on the contrary, constitute outstanding obligations directly against the defendant.
In other words, a careful consideration and investigation of the accounts fail to sustain, by a preponderance of the evidence, that there remains due the plaintiff any sum by way of wages or otherwise. The defendant is, therefore, entitled to judgment herein, dismissing the action of the plaintiff, and to his costs.
GOVERNMENT versus FAJARDO.
(District Court, Canal Zone, Balboa Division, October 21, 1915.)
Criminal No. 324.
1. JURISDICTION.
Under Section 34, Laws of the Canat, Zone, where any part of the crime is cornmitted in the Canal Zone, the courts of the Canal Zone have jurisdiction to try
the defendant charged with such crime.
2. CONSPIRACY.
Where Miller and Fajardo were jointly charged with conspiracy to defraud, and,
separate trials were demanded, and Fajardo was first tried and convicted but upon the trial of Miller he was found not guilty. Held, that Miller having been




GOVERNMENT V. FAJARDO.

found not guilty of the crime of conspiracy, there could be no legal justification for the conviction of Fajardo for the crime of conspiracy, and that such a state
of facts required the granting of a new trial.
Attorney for plaintiff, Dr. H. Arias.
Attorney for defendant, Charles R. Williams, District Attorney.
JACKSON, District judge. The defendant Fajardo was charged jointly with one J. C. Miller with conspiracy to defraud the Government of Colombia through its Postal Agent, Eduardo Espinosa Guzman, and was also charged jointly with Miller with forgery in and about the preparation of seven false receipts to be used in the furtherance of the conspiracy of fraudulently obtaining money from said Guzman, and was also charged with having falsely and fraudulently obtained money from said Guzman by false and fraudulent representations in seven different sums of money, each of which constitutes a separate information, The jury rendered a verdict of guilty as against the said defendant Fajardo on the charge of conspiracy and on the seven charges of obtaining money under false pretenses, and a verdict of not guilty on the seven charges of forgery. The facts in 'the case show that the money in question was obtained in the Republic of Panama, and that the verbal, false, and fraudulent representations were made in the Republic of Panama. The basis of the claim of an offense having been committed contrary to the peace and dignity of the Canal Zone was predicated upon Section 34 of the Criminal Laws of the Canal Zone as follows:
The following persons are liable to prosecution and punishment-first-all persons who commit in whole or in part any crime within the jurisdiction of the courts.
The only part of the offense of obtaining money under false pretense, claimed to have been committed in the Canal Zone, was the fraudulent preparation and presentation therein to Miller of the false receipts in question. It is, however, claimed that the conspiracy was entered into between Miller and Fajardo in the Canal Zone and that the other act in furtherance of the conspiracy, piarely, the preparation and the signing and stamping with the seal of the Panama Railroad Company, was done at Balboa in the Canal Zone. While Fajardo has been found guilty of conspiracy in the Canal Zone, another jury called on to try the case of conspiracy as against Miller has found him not guilty. It must, therefore, be apparent to any one, so far at least as the charge of conspiracy is concerned, that there has somewhere been a miscarriage of justice for it is impossible, on the face of things and in the very nature of the charge of conspiracy, that Fajardo should be guilty of conspiring with Miller and Miller not guilty of conspiring with Fajardo; or., to put it the other way, it is irreconcilable and impossible that Miller should be'not guilty of conspiring with Fajardo and still that




DISTRICT COURT FOR THE CANAL ZONE.

Fajardo should be guilty of conspiring with Miller. Upon the face of it, to let one go free on said charge of conspiracy and to punish the other therefor would seem to present a glaring instance of injustice. It is possible that such finding might be attribute d to local or racial prejudices which, with due regard to the friendship existing between the American people and the Republic of Panama, ought so far as possible to be avoided.
Furthermore, the acquittal of Miller rests substantially, if not wholly, upon the defense that no false receipts were presented to him by Fajardo in the Canal Zone, but that the receipts presented to him, Miller, by Fajardo in the Canal Zone were all regular and proper upon their face, and that they must necessarily have been altered, not in the Canal Zone, but within the Republic of Panama. This was the defense as to three of the receipts in question. As to the other four of the receipts the defense was that Miller signed the same in blank in the Canal Zone honestly, without conspiring with Fajardo, and with no intention to defraud, but that thereafter Fajardo must have made false entries upon the face of said blank receipts, not in the Canal Zone but in the Republic of Panama. This was the theory of the defense advanced by Miller, and it was upon a substantiation of this defense that the jury found Miller not guilty'. If, therefore, the facts be as the jury in the Miller case have undoubtedly found them it must follow that no part whatever of the offenses charged against Fajardo was committed within the Canal Zone, but that every element, including the false raising or the false entering of figures on the receipts, together with the verbal representations, the obtaining of the money thereon, was committed within the Republic of Panama, in which case it must follow necessarily that no offense was committed contrary to the peace and dignity of the Canal Zone. Furthermore, the foreman of the jury in the Miller case, in announcing his verdict, stated that it was the opinion of this jury that no offense had been committed in the Canal Zone. It must also be borne in mind that the facts adduced by Miller in support of his defense *were not adduced in the trial of Fajardo, principally because Miller did not testify in the Fajardo case, nor could he have been compelled to testify.
It has seemed to me that the facts developed at the trial of the Miller case, with the resulting verdict of not guilty, which disclose'such an inconsistency as to the verdict of guilty rendered against Fajardo, are such that, in furtherance of justice, and in the exercise of the dis-" cretion lodged with the court, the defendant Fajardo should be given' the opportunity of another trial at which all the facts looking to the important question of the jurisdiction of this court may be more fully and clearly gone into and considered. It is, therefore, ordered I that the verdicts of guilty herein be set aside and a new trial granted.,




BECKFORD V. PANAMA R. R. CO.

BECKFORD versus PANAMA RAILROAD Co.
(District Court, Canal Zone, Cristobal Division, October 27, 1915.)
Civil No. 53.
1. DISTRICT COURT. ENTRY OF DECISIONS.
Under the provisions of Section 126 of the Code of Civil Procedure, it is not
n Necessary that the court shall file a written decision, but it is the duty of the
clerk to enter the decision on the record.
2. PERSONAL INJURY. EXCESSIVE DAMAGES.
Where the plaintiff, 47 years of age, was run over by an engine operated negligently by the defendant, and the plaintiff's arm was cut off near the shoulder and other severe injuries received which caused him to remain in the-hospital for five months, and which produced great physical and mental pain and suffering, a verdict of $2,500 is not excessive.
3. MASTER AND SERVANT. NEGLIGENCE. CONTRIBUTORY NEGLIGENCE.
The plaintiff was employed by defendant, and under its instruction was engaged
in repairing its track. The engine which caused his injuries was in charge of an engineer and fireman. The engineer and fireman did not see the plaintiff on the track although they had unobstructed view of the track for over 900 feet before the engine reached the plaintiff. the plaintiff had his back to this approaching engine and a train of empty dump cars was passing him on a parallel track at the time and he did nut hear the ringing of the bell on the engine which caused the injury, nor was he expecting an engine or train from the direction from which the engine in question came. ,Held (first) that the defendant was guilty of negligence; (second) that the plaintiff was not guilty of contributory negligence; (third) that it was the duty of the defendant to keep a lookout for and give a warning to the employees of the company engaged in
repairing tracks.
Affirmed by Circuit Court of Appeals, 231 Fed. 436.
Attorneys for'plaintiff, W. C. Todd and V. G. De -Suze.
Attorneys for defendant, C. R. Williams, F. Fesjile, and W. F. Van Dame.
JACKSON, District judge. At the trial of this case, on the 6th day of October, 1915, without a jury, the court, after hearing the evidence and the arguments of counsel, rendered an oral opinion finding for the plaintiff and awarding damages in the sum of $2,500. The finding of the court was, under the circumstances, 'equivalent to a verdict of a jury.
The defendant asks a new trial upon substantially three grounds: 1st, that the court did not, at the time of finding for the plaintiff, file written findings of fact and conclusions of law;
2d, that the verdict of $2,500 is not supported by the evidence inasmuch as plaintiff's life expectancy was not established by the introduction of mortuary tables showing the life expectancy, and




DISTRICT COURT FOR THE CANAL ZONE.

3d, that the evidence failed to show that the defendant was guilty of negligence, but on the contrary established contributory negligence on the part of the plaintiff.
As to the first proposition, Section 126 of the Code of Civil Procedure of the Canal Zone provides as follows:
"Upon the trial of a question of fact, the decision must be entered on the record by the clerk."
It will be noted that this does not require that the trial judge shall in all cases file a written decision, but merely that the decision must be entered on the record by the clerk. There was a rule of the Supreme Court requiring the decisions of that Court to be in writing, but there was never a rule to this effect as regards the decisions of the judges of the Circuit Courts. It may be further said that even at the time when there were three judges of the Circuit Courts upon the Canal Zone, it was not the custom or practice of Circuit judges to render written decisions in all cases, nor was it ever considered that there was such a legal requirement. Section 126 herein referred to does not so require and in that respect it differs from the Code of Civil Procedure of the State of California which does specifically require the decisions to be in writing.
It may be further stated that at the time of the rendition of the opinion and the entry of the verdict herein, no demand or request for a written opinion was made by the attorneys for defendant and also that thereafter, viz: On November 6th at the special instance and request of defendants, and as a special favor and accommodation to th em, the findings of fact and conclusions of law were reduced to writing and filed, to which exceptions were noted on behalf of the defendant. It would therefore seem that although there was no legal requirement for written findings by the court, nevertheless, in this particular case the same was done.
As to the defendant's contention that the damages are excessive because no mortuary tables were offered in evidence showing plaintiff's life expectancy, the evidence, showed that plaintiff's left arm wag cut off at the shoulder, that be has been unable to do manual labor since the time of the accident, and that his permanent earning capacity has been diminished. Considering the diminution in plaintiff's earning capacity and the physical and mental pain and suffering, the verdict of $2,500 was rendered. In this I.fail to find any grounds for granting a new trial.,
The Supreme Court of the Canal Zone in McKenzie vs. McClinticMarshall Construction Co., 2 C.'Z. Rep., page 181, held as follows:
But the loss of a member of the human body would naturally raise a presumption of a diminution of earning capacity as a result thereof, so much so that no specific allegation thereof would seem to be necessary in the pleading in order to predicate a claim for recovery thereon. This is the result of human experience to such an extent




BECKFORD V. PANAMA R. R. CO.

that no specific allegation nor specific proof thereof need be alleged or made. The loss of an eye is such that a court or jury in assessing damages may be entitled to consider diminution of earning capacity as a result thereof, and in so doing may reasonably consider the party's age, habits, condition in life, and present earning capacity.
In the McKenzie case it was also specifically held, following a previous decision in the case of Fitzpatrick vs. Panama Railroad Company, that physical and mental pain and suffering might properly be considered as elements of damage. The Court in that respect said:
"Moreover, it must be said that the plaintiff was undoubtedly entitled to recover for pain and suffering; and the loss of an eye under the circumstances detailed in the evidence at the trial below must certainly have caused the most excruciating pain and suffering, mental and physical."
Therefore, the Supreme Court, in the McKenzie case, in the absence of any specific evidence as to any financial loss whatsoever, increased the verdict of the trial court from $500 to $1,200 for the loss of an eye of a colored employee of the McClintic-Marshall Construction Co. I am therefore of the opinion that the verdict of $2,500 in this case was moderate and considerably less than ordinarily awarded by juries for the same injuries in the States.
As to the grounds of the finding of the court at the trial on the question of the negligence of the defendant, I have since examined with considerable care the case of Aerkfetz vs. Humphreys, et al., 145 U. S., 758, strongly relied upon by counsel for defendant, and I find many important points of dissimilarity between the Aerkfetz case and the case at bar. In the first place it appears in the Aerkfetz case that the trial court directed a verdict for the defendants on the ground of the contributory negligence of the plaintiff, and on appeal by the plaintiff below to the Supreme Court, it was held there was no error in so doing. It is true that the Supreme Court in examining the decision of the court below stated that it rested its judgment of affirmance upon the grounds that under the circumstances there was no negligence on the part of defendants and that the accident occurred through a lack of proper attention on the part of plaintiff. But, it may be stated, that the first proposition was not necessary to the decision of the case because as the law then stood, prior to the enactment of the Federal Employers' Liability Act, contributory negligence on the part of a plaintiff constituted a complete defense. Furthermore, the facts appear to differ materially from those in the present case. It appears that in the Aerkfetz case the accident occurred in a crowded railroad yard in Detroit where there were 12 tracks or side tracks used for the making-up of trains, that the plaintiff, a track laborer, was struck by cars which were being pushed ahead by a switch engine along the track upon which Aerkfetz was at work, the speed of the engine being about that of a man walking. And in passing upon the question of defendant's negligence the Supreme Court said:
MR 97966--4




DISTRICT COURT FOR THE CANAL ZONE.

S"It can not be that, under these circumstances, the defendants were compelled to send some man in front of the cars for the mere sake of giving notice to employees who had all the time knowledge of what was to to be expected."
Wherein lies a material distinction from the facts of the present case. There were no cars ahead of the engine which struck plaintiff Beckford. It was not necessary to send a man ahead for the sake of giving notice to Beckford. The engineer and fireman had an unobstructed view of plaintiff working on the track with his back toward the approaching engine for a distance of over 900 feet. Notwithstanding Which, they failed to give any warning signal of the approach of the train, and too, notwithstanding the fact that there was a train passing, on the opposite track which prevented plaintiff Beckford from hearing the ordinary ringing of the bell of the approaching engine. Furthermore, in the Aerkfetz case, the Supreme Court said that the ringing of bells and the sounding of warning whistles of trains in that crowded switch yard, "would have simply tended to confusion." In the case at bar the danger signals in the way of a warning whistle would not, in my opinion, have tended to confusion but would have duly and properly advised plaintiff of the approaching danger.
But aside from the distinctions herein noted, there is the all important distinction that the Aerkfetz case was decided in 1892 prior to the enactment of the Federal Employers' Liability Act, and contributory neglig4 nce -was a complete defense to an action, and moreover the trend of recent decisions is to hold the defendant more strictly to the obligation to respond in damages to its 'employees for injuries resulting in any manner from the negligence of the employer. And as bearing upon the duty resting upon the railway company to protect its employees at work upon a track, it has frequently been held, especially in more recent decisions, that "a Railroad Company owes a lookout duty to give warning of the approach of trains to those engaged in repairing its tracks." (Ill. Cent. R. R. Co. vs. Murphy (Ky.) IlIL. R. A. ns 352.)
In this case the Court further said:
"These considerations impose upon the railway company, with peculiar force, the duty of giving them warning upon the approach of a train or engine, by the use of audible signals; and by checking and stopping the train or engine in time to avoid injuring them, if the engineer perceive's for any reason that they are not paying attenti ,on to those signals. As a general rule it is not contributory negligence, as a matter of law for a person so employed not to be on a constant lookout for approaching trains."
The doctrine is very clearly and forcibly stated in the case of Gary vs. So. Ry. Co. (N. C. 83 S. E. 849), as follows:
It is not a sufficient defense of the negligence of the defendant that the engineer could not have stopped the train in time to avoid the death of plaintiff's intestate, after he perceived him on the track. The question is whether the engineer could have stopped the train in time to have avoided killing the deceased after he could have perceived the danger of the deceased, had the engineer and the fireman been in the exercise of proper diligence on the lookout.




DAVIS V. PANAMA R. R. CO.

In fact I find numerous recent decisions of courts tending to sustain this general proposition of law; and whereas in the present case it wa's admitted by the engineer and the fireman on the engine in question that they did not see the plaintiff at all and did not know until some time after that plaintiff had been injured, notwithstanding the fact that plaintiff was lawfully at work upon the track, sent there by his superior officer, and was working with his back toward the approaching engine, and that the engineer and fireman could, by the exercise of ordinary care and prudence, have seen the plaintiff so engaged at work upon the track, and have taken measures to prevent the injury, it would* d seem that on well-established principles of modern decisions the defendant was guilty of negligence and plaintiff entitled to recover.
The motion for new trial is therefore overruled.
DAVIS versus PANAMA RAILROAD CO.
(District Court, Canal Zone, Balboa Division, March 14, 1916.)
Civil No. 48.
1. MALICIOUS PROSECUTION. PROBABLE CAUSE. MALICE.
Plaintiff owned mileage book, good on Panama Railroad. It was presented and
train collector tore out mileage for the plaintiff's trip but failed to give him a.
hat check which was the customary method of indicating that a passenger had paid fare. The train conductor caused the plaintiff to be arrested on board the train for trying to ride without payment of fare under the provisions of Executive Order of May 11, 1911 (E. 0. 112). Mileage torn from plaintiff's book was returned to defendant's auditor within twenty-four hours, so identi-4 fled that it could be determined therefrom that plaintiff had paid his fare.
Four days later the collector of the defendant at its instance filed information under such Executive Order, plaintiff was arrested, tried, and discharged by
the magistrate's court. Held,
First-that there was lack of probable cause for the prosecution and negligence of the defendant in failing to ascertain from its records that plaintiff had
actually paid his fare;
Second-that malice is to be inferred from the existence of facts showing
lack of probable cause.
Attorneys for plaintiff, Hinckley and Ganson.
Attorneys for defendant, Frank Feuille and Charles R. Williams.
JACKSON, District judge. This is an action wherein the plaintiff seeks to recover damages in the sum of $500 arising out of an alleged illegal arrest and malicious prosecution. The facts alleged in support thereof are substantially that on the 4th of September, 1914, the plaintiff left the City of Panama on a passenger train of the defendant company




DISTRICT COURT FOR THE CANAL ZONE.

at 5.05 in the afternoon for the purpose of going to his home in Pedro Miguel; that prior to entering said train the plaintiff gave to the collector at the gate from his mileage book a slip for eight miles of transportation which represented the transit from Panama to Pedro Miguel, but that he did not receive from the said collector a hat check; that notwithstanding the fact that the plaintiff thus paid his fare from Panama to Pedro Miguel, the collector of the defendant company accused the plaintiff of attempting to steal a ride and delivered said plaintiff over to the train guard on said train, an officer of the Zone police, 'and that the said train guard kept the plaintiff in custody, and delivered him to an officer of the Zone police in Pedro Miguel. That the plaintiff was obliged to furnish bond for his appearance in the magistrate's court at Ancon, and that four days thereafter, to-wit: On the 8th day of September, 1914, the said collector of the Panama Railroad Company made an affidavit in the magistrate's court, charging that the plaintiff herein "did wilfully and unlawfully fail and refuse to pay 1st class transportation on board passenger train No. 8, northbound between Corozal and Pedro Miguel," and that the plaintiff was, therefore, guilty of violating Executive Order No. 38. This said Executive Order, promulgated May 11, 1911, provides that "any person who shall board any passenger, freight or other railway train in the Canal Zone*
* with intent to obtain a free ride on such train, however short the distance,, without the consent of the person or, persons in charge thereof, shall be guilty of a misdemeanor, and shall be punished by fine of not less than $5 nor more than $20."
Upon the hearing of the case in the '.magistrate's. court the judge of said court did thereupon dismiss the case as to the defendant in said, action and ordered his bond canceled.
The answer of the defendant is in substance a general denial.
The facts established conclusively show that the plaintiff tendered a mileage book at the gate of the Panama Railroad station in the City of Panama on the afternoon of September 4, 1914, and that the, ticket collector at the gate tore out an 8 mile slip from the plaintiff's said mileage book, but, by some inadvertence, he was not given a hat check representing the payment of hi s transportation -in accordance with the prevailing custom. Whether this failure with regard to the hat check was the result of negligence on the part of the collector or of the plaintiff, or of both, does not clearly appear. But it does appear that the plaintiff's mileage book bore his name and check number, and that on each mile slip of. the mileage transportation was printed a certain number that corresponded to the number of the plaintiff's book. It also appears that after the taking of the mileage from mileage books they are turned in to the Auditor of the Panama Railroad Company; that this is invariably done within 24 hours after the taking up of such mileage,




DAVIS V. PANAMA R. R. Co.

and that after such time it can readily be ascertained from the records in the auditor's office whether or not passage has been paid from a certain mileage book between certain designated points on the Panama Railroad on any particular day. Nevertheless, after the arrest of the plaintiff at Pedro Miguel on September 4, on the charge of attempting to steal a ride in violation of the provisions of Executive Order No. 38 hereinbefore referred to, with the facts in the possession of the defendant company and therefore available to the collector of the company by the exercise of ordinary diligence, the said collector 4 days thereafter,. on the 8th of September, made the affidavit in question and preferred the formal charge against the plaintiff, and the prosecution proceeded with the result that the plaintiff was compelled to and did establish his; innocence and was dismissed by the magistrate.
It must be conceded that if the plaintiff did not have in his possession a hat check or other evidence of having paid his fare (and it would seem that the mere possession of the mileage book did not of itself constitute: sufficient evidence of this fact), that the defendant company would clearly be entitled to demand the payment of fare, and that in case of refusal so to pay that he could be ejected from the train, possibly with the right thereafter on the part of the ejected passenger to sue for return of the fare paid and breach of contract. This has been held in numerous cases. In the case of Hall vs. the Memphis, etc., Railroad Co., 15 Federal Reporter, page 62, it was held that one whose transportation had been adjusted with the station agent of the company, but which Was not so done in the form required by the company's rules could be ejected from the train upon failure to pay the regular fare when so, demanded by the conductor, and that if it afterwards appeared that the fare had been wrongfully demanded the party ejected could recover back the same with costs and all damages sustained.
So in the case of the Little'Rock Railroad Co. vs. Goerner, 80 Arkansas, page 158, it was held: "A street car passenger who is given an invalid transfer check upon paying his fare and asking for a transfer, to which he is entitled, can not, upon refusal by the conductor of the connectingcar to honor it, refuse to pay his fare, thereby rendering necessaryforcible ejection, and hold the carrier liable for the assault. But his remedy is confined to damages for the breach of contract, including reasonable compensation for the indignity put upon him through the fault of the company',
Also in the case of McKay vs. Ohio R. R. Co., 9 L. R. A., page 132, it was held as follows:
A railroad conductor may demand a ticket as evidence of a passenger's right of passage, or on failure to produce it may demand payment of the fare, and on failure to pay it may lawfully eject the passenger from the train, using no more force than necessary.




DISTRICT COURT FOR THE CANAL ZONS.

This may be considered as established and, moreover, as a sound principle of law.
However, another question enters into the present case, about which there was some confusion and not a very clear understanding at the trial of this case, and that is the arrest and subsequent prosecution of the plaintiff. Conceding the right of the defendant company, through its collector, to demand fare of the plaintiff, who did not have at the time proper evidence of the payment thereof, and of its right to eject him from the train for failure to pay, did the defendant company four days thereafter have the right to press a criminal charge against the plaintiff when it had in its possession the evidence showing undoubtedly that there was no foundation in fact for such criminal charge. This proposition and that of the right to demand fare and eject from the train at the time are quite distinct. In the case of Reisterer vs. Lee Sum, 94 Federal Reporter, 343,, decided by the District Court of Appeals in New York, it was held that although there might be sufficient facts justifying an immigration officer to cause the original arrest of a party, that, nevertheless, if there were facts in the office of the Collector of New York showing that the arrest was unjustified the party would be liable in damages for the subsequent prosecution of the case. In that case the court said:
With no other evidential facts that the plaintiff was an offender, a just consideration for his rights demanded some effort by the defendant to verify his suspicions. It must be presumed that a duplicate of the photograph was on file with a copy of the certificate- with the collector at New York; yet the defendant did not attempt, to procure a comparison of the two. Nor, so far as appears, did he make the slightest effort to get information about the antecedents of the plaintiff Wecan not doubt that the case justified the conclusion thatthe defendant acted hastily and overzealously in making the arrest, and allowed his suspicion to overmaster the discretion and judgment which he ought to have exercised.
And so in Sutherland on Damages, Vol. 4, pages 3584-5, it is stated: A mere honest belief in guilt is not enough; it must be founded upon reasonable grounds. For though he have belief and yet act negligently and irrationally, the prosecution may not have probable cause. The test then is not exclusively limited to the actual knowledge of the defendant in fact, but may be put to any knowledge which he could or ought to have gained in the exercise of ordinary prudence and caution.
This the'court thinks correctly states the rule of law, and applying this to the case at bar it must be held that the knowledge of the facts upon which the plaintiff was prosecuted was exclusively in the possession of the defendant company, and by the exercise of ordinary prudence and diligence it could have been ascertained at any time during the four days that elapsed between the arrest of the defendant on September 4 and the filing of the affidavit and the prosecution of the case against him on September 8. The, defendant company through its agent should have advised itself of the existence of the facts within its
-possession before continuing the prosecution of the case, for otherwise




DAVIS V. PANAMA R. R. CO.

it would be to reverse the well-known principle of law that the accused must be presumed innocent until proven guilty, and that the burden of establishing the guilt is upon the prosecution and not upon the accused.
In the Am. & Eng. Enc. of Law, Vol. 14, page 25, it is stated:
It is universally held that a criminal proceeding having been brought or prosecuted maliciously and without probable cause, affords when terminated the basis of an action of malicious prosecution against the one so bringing or prosecuting such proceeding.
In fact, there are numerous cases holding that the continuance of a prosecution after the original arrest, when the party instituting the same could, with reasonable diligence, have ascertained the facts showing the innocence of the accused, constitutes the basis for an action of malicious prosecution.
And likewise in numerous cases it has been held that the discharge of the plaintiff by the committing magistrate is prima facie evidence of want of probable cause and sufficient to throw upon the defendant the burden of proving the contrary. Also, that while malice and want of probable cause must concur to entitle plaintiff to recover malice need not be proven affirmatively, but it may be inferred from the want of probable cause.
Bornholdt v. Souillard, 36 La., 103.
Hall v. Acklen, 9 La., 219.
Brown v. Vittier, 47 La., 607.
Whaling Wells, 50 La., 564.
So in the case at bar it may be said that there was justification for ejecting the plaintiff 'from the train, and even that there was probable cause for the original arrest of the plaintiff, but it can not be Said that with all of the evidence in the possession of the defendant there was probable cause for the continuance of the prosecution 4 days thereafter; and from the absence of such probable cause malice, as a matter of law, is to be assumed. It, therefore, follows that in the present case there are established the four elements necessary to constitute an action for malicious prosecution, n amely: (1st) the arrest; (2d) the discharge by the committing magistrate, which raises the prima facie presumption,
(3d) the want of probable cause, and (4th) the resulting malice as a legal consequence.
In this connection the following language of the court of appeals in the case of Reisterer vs. Lee Sum is particularly in point:
But the defendant was responsible for the arrest, and for putting in motion the criminal proceeding which subjected the plaintiff to imprisonment and compelled him to establish his innocence; and he can not escape the consequences because, as it turned out, there was a stronger case against the plaintiff when he was put on trial before the commissioner than there was when the proceedings were initiated.




DISTRICT COURT FOR THE CANAL ZONE.

In an action for malicious prosecution the jury are at liberty to infer malice from facts that establish want of probable cause. It was not necessary, therefore, for the plaintiff to prove that the defendant was actuated by any personal ill will toward him in instituting the criminal proceeding.
As to the measure of damages the following elements should be taken into consideration, namely: The humiliation to which the plaintiff was subjected by the arrest and his subsequent trial upon a criminal charge; the expense of going to Balboa to defend himself, his loss of time, and the fact that the odium of the existence of such a charge against an honest person is naturally embarrassing.
Under all the circumstances the court considers the plaintiff is entitled to recover herein the sum of three hundred ($300) dollars with his costs, and a verdict therefor may accordingly be entered.
BULGARES versus BEST.
(District Court, Canal Zone, Cristobal Division, April 3, 1916.)
Civil No. 119.
1. MALICIOUS PROSECUTION.
In a case for malicious prosecution the plaintiff must establish (first) the arrest;
(second), discharge by the court; (third), want of probable cause, and (fourth),
malice.
2. MALICIOUS PROSECUTION. PROBABLE CAUSE.
Discharge by the magistrate's court in this case held to establish prima faie
case of want of probable cause.
3. MALICIOUS PROSECUTION. PROBABLE CAUSE. MALICE.
Malice may be inferred and found from want of probable cause.
Attorney for plaintiff, William C. Maclnlyre.
Attorney for defendant, V. G. De Suze.
JACKSON, District Judge. This case comes into this court on appeal from the Magistrate's court wherein plaintiff recovered a judgment against the defendant in the sum of $300 and costs. The action was one for malicious prosecution arising out of the suit of Ernest Best against John Bulgares, referred to in the opinion of the court therein.
In said civil suit the said defendant Best caused the arrest and prosecution of the said John Bulgares upon the allegation that the said Bulgares was indebted to the said Best in the sum of $100 arising upon contract, and that the said Bulgares was about to depart from the Canal Zone with the intent to defraud his creditors. The evidence adduced at the trial would indicate that the plaintiff was not only arrested, but subjected to a long, vexatious, harrassing and costly trial,




DIEZ Vi SCHUBER.

which finally resulted in his acquittal and discharge. As before stated, upon a hearing of the case, the magistrate, having all the facts and circumstances before him, and fresh in his mind, awarded a judgment of $300 in favor of Bulgares and against Best.
Upon the trial of the case in this court on appeal, being one for malicious prosecution, the plaintiff is compelled to establish the existence of four essential facts in order to recover: (1st) the arrest;
(2d) the discharge by the magistrate (which fact has frequently been held to raise a prima facie case); (3d) want of probable cause; and (4th) malice, which may be inferred from the lack of probable cause.
The arrest, with all of the consequent inconveniences, damages, and harrassments, has been abundantly established; also the acquittal and discharge in the magistrate's court; and in an opinion recently rendered by this court in the case of Davis against the Panama Railroad Company numerous authorities were cited showing that such discharge makes a prima facie case of malicious prosecution, placing the burden upon the defendant. Furthermore, the special facts and circumstances would tend to show that even if Bulgares owed Best the sum of $100 (which we have found he did not), the special facts of the case would show that the grounds upon which his arrest were ordered were without probable cause and unjustified. There seems to have been no justification for the criminal proceedings taken by the defendant, Best, against the plaintiff, Bulgares, in the civil case pending in the magistrate's court. From this, as a matter of law, malice is legally inferred. Therefore, under all the facts and circumstances I see no reason for disagreeing with the judgment of the court below, and it must, therefore, follow that the plaintiff is entitled to judgment against the defendant in the sum of three hundred dollars ($300), and costs herein.
DIEZ versus SCHUBER.
(District Court, Canal Zone, Balboa Division, May 24, 1916.) Civil No. 40.
1. FOREIGN JUDGMENTS. RES JUDICATA COMITY.
Partnership matters between plaintiff and defendant were litigated in the courts
of the Republic of Panama, resulting in judgment there in favor of defendant and against plaintiff for $282.55, silver. This suit is brought for recovery of sums claimed by plaintiff as a result of the partnership transactions. Defendant pleaded judgment rendered in the Republic of Panama as resjudicata, and
it is Held,
1. That in view of the fact, as shown by the evidence, the Panama courts give
conclusive effect to judgments of the Canal Zone, that comity requires that a like effect be given in our courts to judgments of the courts of the Republic of Panama. (This decision in effect overrules prior decision on demurrer in this
case. 3 C. Z. Report).




DISTRICT COURT FOR THE CANAL ZONE.

2. That all matter litigated, or which might have been litigated, between the
parties in the action in the courts of the Republic of Panama are resjudicata.
Attorney for plaintiff, Win. H. Carringlen.
Attorneys for defendant, Hinckley and Ganson.
JACKSON, District Judge. In the opinion of the court heretofore filed herein, overruling the plea of resjudicata, it was stated as follows:
It is insisted by the plaintiff that the litigation in the Republic of Panama did not necessarily, or in fact, involve the same questions as are here presented for determination; but a careful reading of the judgments of the Panamanian courts has led me to the contrary conclusion for it would seem that in the Panamanian courts all questions arising out of the liquidation of the alleged partnership between the parties passed in review before those courts, or at least that each party thereto had his day in court as to all questions that might possibly arise out of the liquidation of the said contract which is the basis of the present suit. I am therefore led to conclude that substantially the same questions were involved in the Panamanian courts as are here presented for determination.
It will be recalled that defendant Schuber recovered from plaintiff Diez in the municipal court of the City of Panama the sum of $282.5$ Panamanian silver, which judgment was afterwards appealed to the Circuit Court for the First Circuit of Panama, and said appeal was there dismissed for not being properly presented. Therefore, the judgment of the Panamanian court is final and conclusive as to all questions there litigated between the parties. It was, however, held that the judgment of the Panamanian court was not conclusive in this court as to the rights of the parties, the court relying for its decision upon the case of Hilton vs. Guyot, 159 U. S., 113, in which the Supreme Court of the United States held as follows:
In the absence of statute or treaty, the comity of this country does not require that judgments of a foreign country be recognized as conclusive in this country, where such foreign country does not give like effect to our own judgments.
The court adopted the rule laid down in Hilton vs. Guyot upon the statement and showing then made that the Panamanian courts did not in all cases give full force and effect to the judgments of the courts of the Canal Zone, but that causes of action which had been determined here could be, and in fact were, readjudicated in the Panamanian courts in actions brought therein. However, upon the present trial of the case, in which the defense of res judicata, is again relied upon, the evidence demonstrates very clearly and conclusively that the courts of Panama do give full force and effect to the judgments of this court, and that they likewise issue executory orders or executions on such judgments. There is to this effect the testimony of Judge Pinillo, and Dr. Ayarza, a former justice of the Supreme Court of the Republic of Panama. It must, therefore, follow that when foreign countries do




JACKSON V. SMITH, AUDITOR.

give full force and effect to the judgments of our courts the comity of our country requires that the judgments of such foreign countries be recognized as conclusive in our courts, and this is all the more so by reason of the close relations that exist, and should exist, between the Canal Zone and the Republic of Panama. It is quite necesssary and important that the judgments of the courts of both jurisdictions should be reciprocally recognized, and, as it has been shown that the courts of Panama recognize our judgments, we should reciprocally recognize theirs.
The evidence further shows that the matters in dispute between the two parties in the Panamanian courts were the same, or, at least, as stated in the former opinion herein, that each party had his day in court as to all questions that might arise out of the contractual relation, which was the basis of that suit. It must, therefore, follow that the defendant is entitled to judgment with his costs herein by reason of the prior adjudication of the questions at issue.
Moreover, a careful consideration of the evidence produced at the trial would show that, while there was a contract entered between the parties looking to a partnership for the conduct of the dairy business, and that in pursuance thereof the plaintiff Diez accommodated the defendant Schuber with a loan of money through the International Banking Corporation for the purpose of enabling him to make a trip to the United States,,that thereafter the defendant Schuber took up the loan and liquidated the indebtedness from him to Diez, and that the contract of partnership was rescinded by mutual consent, and that whatever losses and expenses were suffered by the plaintiff Diez were properly for his own account, for which there is no legal claim against the defendant Schuber.
Furthermore, the evidence fails to support. the allegations of fraud as against the defendant Schuber as reasons conducing to the making of the contract upon which the plaintiff seeks to recover.
It, therefore, follows that the defendant, Upon the facts established at the trial as well as the plea of res judicata, is entitled to judgment herein with his costs; and it is so Ordered.
JACKSON versus SMITH, Auditor.
(District Court, Canal Zone, Balboa Division, July 11, 1916.) Civil No. 107.
1. MANDAMUS. JURISDICTION. DISTRICT COURT OF CANAL ZONE.
Under the provisions of the Panama Canal Act, Aug. 24, 1912, c. 390, Sec. 8,
37 Stat. 565 (Comp. St. 1916, Sec. 10044), the District Court of the Canal Zone has jurisdiction to issue a peremptory writ of mandamus where a proper case
is presented within C. C. P. C. Z., Sec. 552.




DISTRICT COURT FOR THE CANAL ZONE.

2. UNITED STATES. OFFICERS. POWERS AND DUTIES. AUDITOR OF
I PANAMA CANAL.
Under the Panama Canal Act and the Executive Order of January 27, 1914
(Executive Orders 1904-1915, p. 330), as amplified by that of March 2, 1914 (page 340), promulgated in pursuance thereof and which became a part of the act, the auditor of The Panama Canal is the legal custodian of the funds of the Canal and of the Canal Zone, and is exclusively charged with their disbursement, being required to report only to the President and to Congress.
3. MANDAMUS. AUDITOR OF PANAMA CANAL. DISCRETION.
Where the incumbent of an office in the Canal Zone created by the Panama Canal
Act, with a fixed salary, has performed the duties which entitle him to a payment of salary, and Congress has appropriated the money for the same, the duty of the auditor of the Canal to issue a warrant therefor is a ministerial duty, and he has no discretion to withhold such warrant on a claim that the
officer is indebted to the United States.
4. UNITED STATES. OFFICERS. AUTHORITY AND POWERS. COMPTROLLER OF TREASURY.
The salary of a judge who has served under an appointment made by authority
of an act of Congress, which has also fixed his compensation and appropriated money for its payment, is not a claim against the Government subject to the provisions of the Dockery Act, July 31, 1894, c. 174, Sec. 8, 28 Stat. 20 7 (Comp.
St. 1916, See. 425), which authorizes disbursing officers to submit any question involving a payment to be made by them to the Comptroller of the Treasury for decision, but is a demand fixed by the law which no executive officer of the
Government has power to withhold or diminish.
5. UNITED STATES. OFFICERS. AUTHORITY AND POWERS. COMPTROLLER OF TREASURY.
Such provision applies only to claims against the Government the validity of
which may be questioned by a disbursing officer, and the assertion by him of an unadjudic 'ated cross-claim on behalf of the Government, which he seeks to deduct from the fixed salary of a Federal judge, raises no question which the
comptroller is given authority to decide.
6. UNITED STATES. OFFICERS. DUTIES. AUDITOR OF PANAMA
CANAL.
The Executive Order of January 27, 1914, as amplified by that of March 2,11914,
promulgated by the President pursuant to express authority given by the Panama, Canal Act, is in legal contemplation an integral part of such act, and the -duties of the auditor of the Canal therein provided for are statutory,
and not merely pertaining to administrative detail.
7. JUDGES. SALARY. AUDITOR OF PANAMA CANAL.
Act Oct. 22, 1913, c. 32, 38 Stat. 209 (Comp. St. 1916, Sec. 423), provides that
"the money accounts of The Panama Canal, under the Panama Canal Act shall continue to be audited by the Auditor of the War Department." The Executive Order of January 27, 1914, provided for by the Canal Act, and which put it into effect, provides for an accounting department under the supervision and direction of an auditor on the Isthmus charged with the administrative examination of such accounts as are required to be submitted to the Treasury Department, and "the collection, custody, and disbursement of funds of The Panama Canal and the Canal Zone." The Sundry Civil Appropriation Act (Act March 3, 1915, c. 75, 38 Stat. 883), provided for the payment of the salary of the district judge of the Canal Zone and appropriated money




JACKSON V. SMITH, AUDITOR.

for the purpose. Held*,that in so far as there was any conflict between them, the Executive Order superseded the act of October 22,1913, and that the auditor of the Canal was charged with, the duty of auditing and paying the salary
of the district judge.
8. MANDAMUS. SUBJECTS AND PURPOSES OF RELIEF. MINISTERIAL
ACTS.
Where a plain ministerial duty is imposed on a n executive officer,. leaving nothing
to his judgment or discretion, and he refuses to act under such circumstances,
mandamus is appropriate to compel him to perform his duty.
9. UNITED STATES. JURISDICTION OF FEDERAL COURTS. ACTION
AGAINST UNITED STATES.
An action for mandamus to compel an official of the United States to do his
plain ministerial duty under the laws is not an action against the United States,
and is within the jurisdiction of a Federal court.
10. JUDGES. COMPENSATION OF FEDERAL JUDGES. ,"EMOLUMENTS."!
Section 8 of the Panama Canal Act provided that when it was put into effect
by Executive Order there should be established in the Canal Zone a district court with a district j udge who during his term should reside within the Zone and should receive the same salary as district j udges in the United States, and no emoluments except such salary. There are no houses in the Canal Zone except those owned by the Government, nor are others permitted. IThose of the Government were built for the use of employees of the Canal and the Panama Railroad Company and other functionaries of the United States, to whom they were furnished without charge except for a period of less than 3 months, during which, by Executive Order, employees of th e Canal and railroad were charged a rental. The judges serving during government by the Canal Commission were furnished quarters or houses without charge. Held, that the furnishing of a house rent free to the district judge appointed under the, Canal Act was not an "emolument" in violation of the act, but a necessary incident to his compliance with his duty to reside in the Zone, and that, in the absence of any law or Executive Order requiring the payment of rent therefor, there was no authority to exact it from him (quoting Words and
Phrases, Emoluments).
11. JUDGES. SALARIES OF FEDERAL JUDGES. DEDUCTIONS.
An executive department of the United States has no authority to make a deduction from the salary of a Federal judge, fixed by law and for which an appropriation has been made by Congress, because of a claimed indebtedness from him to the Government. (Affirmed 241 Fed. 747. 246 U. S, 388.)
Attorneys for relator, Fairman, Macinlyre, A rias, and Ganson.
Attorney for respondent, Charles R. Williams, District Attorney.
CLAYTON, Special District judge.
OPINION OF, THE COURT.
Under the appointment of the President and confirmation by the Senate, William Hf. Jackson, the relator, duly qualified as district judge of the Canal Zone on May'1, 1914, and has ever since continuously discharged the duties of his. office. He became and is entitled to the same salary as that paid a district judge of the United States. (Sec. 8, Act supra.)




DISTRICT- COURT FOR THE CANAL ZONE.

,The relator avers "that the Congress of the United States has heretofore appropriated funds for the payment of the salary of your petitioner, and has appropriated funds for salaries and expenses necessary for the civil government of the Canal Zone, including the expenses of your petitioner herein while engaged in the performance of his official duties, and that the funds appropriated as aforesaid, are now available for the payment of said salary and expenses." And this allegation is admitted by the respondent in his answer to the petition. H. A. A. Smith, the respondent, is the auditor of the Accounting Department of The Panama Canal, and is charged with the collection, custody, and disbursement of funds for The Panama Canal and the Canal Zone, including the funds appropriated by Congress for the relator's salary. The respondent has paid to the relator his salary monthly and from time to time, but now withholds from him of his salary the sum of $1,131.76 for the payment of the following items of alleged indebtedness to The Panama Canal, namely:
From the salary due the relator for the, month of December, 1914, $170.07, for the rent of residence, house No., 118, Ancon, C. Z., from May 1 to October 17, 1914, 5 months and 17 days at the rate of $25 per month, and electric current for the same period at the rate of $5.55 per month; from the salary due the relator for the month of January, 1916, $66.66, on account of alleged absence for a period of four days during said month of January beyond the six weeks' leave referred to in the Panama Canal Act; from the salary due the relator for the month of March, 1916, $500, to apply on account of rent for use of residence No. 311, Ancon; from the salary due the relator for the month of April, 1916, $341.97, alleged balance due for rent of house No. 311, Ancon, to April 30, 1916, and account of one day's alleged absence beyond the six weeks' leave referred to in the Panama Canal Act; and from the salary due the relator for the month of May, 1916, $53.06 account of rent for house No. 311, Ancon, and electric current; or a total sum of $1,131.76.
The relator avers that he is not ind ebted to The Panama Canal or the United States in any sum or sums whatsoever, and denies specifically every item of the above-mentioned claim of indebtedness, and alleges that the before-mentioned sum of $1,131.76 of his salary is being unlawfully withheld from him by the respondent.
The prayer is that the respondent, the Auditor of The Panama Canal, be compelled by peremptory mandamus to audit, approve, issue and deliver to the relator warrants, vouchers or pay checks for his salary as district judge of the Canal Zone as required by law and practice,without regard to said claim of indebtedness set up by the respondent which, as before stated, is denied by the relator.
The respondent admits the appointment and service of the relator as district judge of the Canal Zone, but he claims that he has the right




JACKSON V. SMITH, AUDITOR.

and that it is his duty to withhold the said sums described on the ground of the relator's alleged indebtedness for house rent and electric lights, and the sums deducted and withheld on account of five days' alleged
- absence from the Canal Zone in excess of the six weeks' leave of absence specially provided for in Sec. 8, Act of August 24, 1912.
1. This Act is entitled "An act to provide for the opening, maintenance, protection, and operation of the Panama Canal, and the sanitation and goverment of the Canal Zone." It is sometimes referred to as the Panama Canal Act but is commonly called the Adamson Act after its distinguished author.
It is provided in this act:
SEC. 2. That all laws, orders, regulations, and ordinances adopted and promulgated in the Canal Zone by order of the President for the government and sanitation of the Canal Zone and the construction of the Panama Canal are hereby ratified and confirmed as valid and binding until Congress shall otherwise provide. The existing courts established in the Canal Zone by Executive Order are recognized and confirmed to continue in operation until the courts provided for in this act shall be established.
And it is pertinent to quote the following section of the act:
SEC. 8. That there shall be in the Canal Zone one district court with two divisions, one including Balboa and the other including Cristobal; and one district judge of the said district, who shall hold his court in both divisions at such time as he may designate by order, at least once a month in each division. The rules of practice in such district court shall be prescribed or amended by order of the President. The said district court shall have original jurisdiction of all felony cases, of offenses arising under section ten of this act, all causes in equity; admiralty and all cases at law involving principal sums exceeding three hundred dollars and all appeals from judgments rendered in magistrates' courts. The jurisdiction in admiralty herein conferred upon the district judge and the district court shall be the same that is exercised by the United States district judges and the United States district courts, and the procedure and practice shall also be the same. The District Court or the judge thereof shall also have j urisdiction of all other matters and proceedings not herein provided for which are now within the jurisdiction of the Supreme Court of the Canal Zone, of the Circuit Court of the Canal Zone, the District Court of the Canal Zone, or the judges thereof. Said judge shall provide for the selection, summoning, serving, and compensation of jurors from among the citizens of the United States, to be subject to jury duty in either division of such district, and a jury shall be had in any criminal case or civil caseat law originating in said court on the demand of either party. There shall be a district attorney and a marshal for said district. It shall be the duty of the district attorney to conduct all business, civil and criminal, for the Government, and to advise the Govern'or of the Panama Canal on all legal questions touching the operation of the Canal and the administration of civil affairs. It shall be the duty of the marshal to execute all process of the court, preserve order therein, and do all things incident to the office of marshal. The, district judge, the district attorney, and the marshal shall be appointed by the President, by and with the advice and consent of the Senate, for terms of four yeArs each, and until their successors are appointed and qualified, and during their terms of office shall reside within the Canal Zone and shall hold no other office nor serve on any official board or commission nor receive Any emoluments except their.
-salaries.' The district judge shall receive t he same salary paid the district judges of the United States, and shall appoint the clerk of said court, and may appoint one assist-




DISTRICT COURT FOR THE CANAL. ZONE.

ant when necessary, who shall receive salaries to be fixed by the President. The district judge shall be entitled to six weeks' leave of absence each year with pay. During his absence or during any period of disability or disqualification from sickness or otherwise to discharge his duties the same shall be temporarily performed by any circuit or district judge of the United States who may be designated by the President, and who, during such service, shall receive the additional mileage arjd per diem allowed by law to district judges of the United States when holding court away from their homes. The district attorney and the marshal shall be paid each a salary of five thousand dollars per annum.
By the reading of this section it is seen that the District Court of the Canal Zone has original jurisdiction in all cases at law involving principal sums exceeding three hundred dollars, and that jurisdiction of ail other matters and proceedings not specially provided for in the Act were by the terms of the Act itself retained in the District Court or- the judge thereof, including jurisdiction of all matters and proceedings of which the Supreme Court, the Circuit Courts and the District Courts of the Canal Zone had jurisdiction at the time the Adamson Act was passed. And it must be remembered that the Code of Civil Procedure of the Canal Zone was by the authorized order of the President, dated May 1, 1907, made a part of the law governing the Canal Zone; and this too, it will be observed, was continued in force by the Adamson Act. This code provides as follows:
Sec. 552. Procedure in Mandamus.-The Supreme Court shall have concurrent jurisdiction with the Circuit Courts in all cases where any inferior tribunal, corporation, board, or person unlawfully neglects the performance of an act which the law specially enjoins as a duty resulting from an office of trust or station, or unlawfully excludes the plaintiff from the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully excluded by such inferior tribunal, corporation, board, or person, and also shall have original jurisdiction over Circuit Courts, and j udges thereof wherever said court or judge unlawf ully neglects the performance of a duty which the law specifically or specially enjoins as a duty imposed upon such court or judge. The procedure of the Supreme Court in mandamus proceedings shall be the same as those provided for mandate in this code.
Sec. 554. Preliminary injunctions in certiorari, mandate, prohibition proceedings.In certiorari, mandamus, and prohibition proceedings an injunction may be granted by any judge of the Supreme Court, if in his judgment such injunction is necessary for the preservation of the rights of the parties pending litigation.
Sec. 555. Expediting such proceedings.-The court may, in its discretion, make such orders as it deems necessary for expediting proceedings in petitions for certiorari, mandamus, or prohibition proceedings.
Thus we find the District Court of the Canal Zone has jurisdiction in all cases where any inferior tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office or position of trust, or unlawfully denies to or excludes one entitled to the use and enjoyment of a right or office from the use or enjoyment of such right or office or any right which is unlawfully denied by an inferior tribunal, corporation, board or person.




JACKSON V. SMITH, AUDITOR.

It was never heretof ore contended that the former Circuit and Supreme Courts of the Canal Zone did not have authority to issue a writ of mandamus, or that the District Court as now constituted does not have such power. Manifestly Congress legislated, in passing the Adamson Act, with reference Xo the Code of Civil Procedure, supra, and presumably with knowledge of and reference to proceedings in the Courts, Circuit and Supreme, of the Canal Zone. As now constituted, the jurisdiction and power of the District Court of the Canal Zone was not abridged by the Adamson Act but, on the contrary this Court was invested by the act with all the powers heretofore exercised by the Circuit and Supreme Courts of the Canal Zone. As before said, it must be presumed that Congress knew the power and jurisdiction of such courts and the proceedings had in them, and, on admitted elementary principle, the Act of Congress is to be considered in the light of what was done by and in the Courts of the Canal Zone. Let me refer to some of the adjudged cases.
On page 134, vol. 1, of the published Reports of the Supreme Court of the Canal Zone, case No. 45, decided on September 19, 1908, the Supreme Court held that a writ of mandamus would lie, and in fact issued a writ of mandamus to E. M. Goolsby, Clerk of the Circuit Court of the Second Judicial Circuit.
In Canal Zone, ex rel., Seixas vs. Gudger, vol. 2, Canal Zone Supreme. Court Reports, p. 89, the Supreme Court of the Canal Zone refused to issue a writ of mandamus, not because it did not have jurisdiction so to do but because the relator in that case sought by mandamus to compel the judge of the Second Circuit Court to grant an appeal when no bill of exceptions had been prepared and presented to him. The closing paragraph of that decision is as follows (1. c. 71):
Since, therefore, the petition herein fails to show, that the relator made any proper attempt to perfect his bill of exceptions and since it also fails to show that the respondent unlawfully neglected the performance of any duty specifically or specially enjoined upon him as acting judge of the Circuit Court for the second Circuit, it is considered by the court that the alternative writ heretofore issued should be quashed, that the stay granted therein should be vacated and the petition dismissed with costs against the relator. It is so ordered.
'In Canal Zone, ex. rel., Win. H. Knox & Co. vs. Goolsby, vol. 2, Canal Zone Supreme Court Reports, 64, a peremptory writ of mandamus did issue to the respondent, commanding him to pay to the relator the sum of $4,434. The syllabus in this case is manifestly erroneous as the body of the decision on page 65 shows that a writ of mandamus did issue.
In Canal Zone, ex rel., Sucre vs. Owen, vol. 2, Canal Zone Supreme Court Reports, 66, the Supreme Court refused a writ of mandamus directing a judge of the Circuit Court to sign a bill of exceptions when it appeared that the bill of exceptions was tendered solely for the purpose
MR 97966 5




DISTRICT 'COURT FOR: THE' CANAL. ZONE.

of- saving an exception taken to a ruling of the court on May 23 overruling a motion to vacate a judgment that had been rendered at the, March term. The Supreme Court held that the Circuit Court had lost control over the judgment and was powerless to set aside at the May term of court a judgment rendered at the March term, and that, therefore, even though a bill of exceptions had been signed, it would not have benefitted the party applying for the writ of mandamus. For this reason the writ was refused.
In the case of Kong Ching Chong vs. Wing Chong, vol. 2, Canal Zone S. C. Reports, p. 25, 1 c. 29, the Supreme Court in defining the jurisdiction of Circuit Courts in the Canal Zone said as follows:
What is a Circuit Court of the Canal Zone? A court limited in its jurisdiction by the substantive law of Panama? Not so. They are courts of equal plenary jurisdiction with the Court of King's Bench in Great Britain and the Circuit Courts of the States ef the Union and, the United States. Courts of the highest jurisdiction in the world. Nothing j uri'sdictional is withheld from them. Over the life, the property, and liberty of the litigants before them they possess all jurisdictional power.
These cases are cited for the. purpose of showing that never heretofore was the authority of the Circuit and Supreme Courts of the Canal Zone questioned; and further to show that as a matter of fact writs of mandamus have been issued by these Courts.
As we have said the present District Court of the Canal Zone is vested with all the jurisdiction of the former Circuit and Supreme Courts of the Canal Zone which lawfully exercised the power to issue writs of mandamus.
IIt is clear that judge Jackson is entitled to his salary of $6,000 per annum in monthly payments of $500 just as in case he were a district judge of the United States. And it appears to be equally clear that the District Court of the Canal Zone has authority to issue a peremptory mandamus if a proper case is presented.
2. Let us now consider whether mandamus can be rightfully issued against the auditor of The Panama Canal. The Adamson Act provides as follows:
Sec. 4. That when in the judgment of the President the construction of the Panama Canal shall be sufficiently advanced toward completion to render the further services of the Isthmian Canal Commission unnecessary the President is authorized by Executive, Order to discontinue the Isthmian Canal Commission, which, together with the present organization, shall then cease to exist; and the President is authorized thereafter to complete, govern, and operate the Panama Canal and govern the Canal Zone, or cause them to be completed, governed, and operated through a governor of the Panama Canal and such other persons as he may deem competent to discharge the various duties connected with the completion, care, maintenance, sanitation, operation, government, and protection of the Canal and Canal Zone. If any of the persons appointed or employed as aforesaid shall be persons in the military or naval service of the United States, the amount of the official salary paid to any such person shall be deducted from the amount of salary or compensation provided by or which shall be fixed under the terms of this act. The Governor of the Panama Canal




JACRSON mi SMITR, AUDITOR.

shallbe appointed by the President, by and with the advice and consent of the Senate, commissioned for a term of four years, and until his successor shall be appointed and qualified. He shall receive a salary of ten thousand dollars a year. All other persons necessary for the completion, care, management, maintenance, sanitation, government, operation, and protection of the Panama Canal and Canal Zone shall be appointed by the President, or by. his authority, removable at his pleasure, and the compensation of such persons shall be fixed by the President or by his authority, until such time as Congress may by law regulate the same, but salaries or compensation fixed hereunder by the President shall in no instance exceed by more than twentyfive per centum the salary or compensation paid for the same or similar services to persons employed by the Government in Continental United States. That upon the completion of the Panama Canal the President shall cause the same to b4e officially and formally opened for useand operation.
Thereafter, in pursuance to the provisions of section 4 above quoted, under date of January27,1914, the President promulgated an Executive Order, sec. 6 of which readsas follows:
6. There shall be an Accounting Department under the supervision and direction of the auditor, with an assistant in the United States. The duties of the department shall include all general bookkeeping, auditing, and accounting, both for money and property, cost keeping, the examination of pay rolls and vouchers, the inspection of time books and of money and property accounts, the preparation of statistical data, and the administrative examination of such accounts as are required to be submitted to the United States Treasury Department; and the collection, custody, and disbursement of funds for The Panama Canal, and the Canal Zone.
These same duties shall be performed for the Panama Railroad Company on the Isthmus when not inconsistent with the charter and by-laws of that Company. The department shall be charged with the handling of claims for compensation on account of personal injuries and of claims for damages to vessels. Within the limits fixed by law, the duties and financialresponsibilities of the officers and employees charged with the receipt, custody, disbursement, auditing and accounting for funds and property shall be prescribed in regulations issued by the governor, with the approval of the President. The auditor shall maintain such a system of bookkeeping as will enable him to furnish at any time full, complete, and correct information in regard to the status of appropriations made by Congress, the status of all other funds, and the amounts of net profits on all operations, which are to be covered into the Treasury as required by the Panama Canal Act.
The act conferred a very broad power upon the President. It authorized him to "complete, govern and operate the Panama Canal and govern the Canal Zone, or cause them to be completed, governed, and operated through a Governor of the Panama Canal and such other persons as he may deem competent to discharge the various duties connected with the completion, care, maintenance, sanitation, operation, government, and protection of the Canal and Canal Zone." Of course, such Executive Orders as the President promulgated for the purpose of putting said act into effect became a part of the act itself. Moreover, by its very terms, the act did not become operative until the Executive Order put it into effect. It is plain, therefore, that these Executive Orders are to he interpreted and treated by this court as a part of the Congressional enactment.




DISTRICT COURT FOR THE CANAL ZONE.

It will'be observed that section 6 of the Executive Order, supra provided that there should be an auditor, with an assistant in the United States. He was authorized to have charge of the collection, custody, and disbursement of funds for The Panama Canal and the Canal Zone, including all moneys appropriated by Congress for The Panama Canal and the civil goverment, etc., of the Canal Zone. He was made at once the custodian, the auditor, and disburser of the funds to be expended on the Isthmus.
This Executive Order further provided that the auditor shall maintain such a system of bookkeeping as will enable him to furnish at any time full, complete and correct information in regard to the status of appropriations made by Congress, and the status of all other funds and the amounts of net profits on all operations, which are to be covered into the Treasury as required by the Panama Canal Act.
The last sentence of section 6 of the Panama Canal Act, to which this section of the Executive Order refers, is in this language: Monthly reports of such receipts and expenditures shall be made to the President by the persons in charge, and annual reports shall be made to Congress.
Now, the person in charge of these funds was the auditor, which position or office was created by the President under the Executive Order above quoted. It is true that the auditor has an assistant in the United States, but he was no more than an assistant there. The auditor in the Canal Zone had charge of the funds and exclusive control over their disbursement. This is manifest from that portion of section 6 of the Panama Canal Act heretofore quoted; and it was necessary for him to make reports monthly to only one department or official, namely, the President, and to make reports annually to only one body, namely, Congress. The Act of Congress and the Executive Orders thereunder placed the auditor of The Panama Canal under the President and the Congress. of the United States and under no other official, body, or department.
Again, section 5 of the Executive Order of March 2, 1914, in amplification of section 6 of the Executive Order above-quoted, is in the following language:
Section V. That the assistant auditor provided for in Executive Order No. 1885, dated January 27, 1914, shall be appointed April 1, 1914. His salary shall be fixed by the governor. He shall perform such duties of the Accounting Department to be performed in the United States, as may be assigned to him by the auditor, and also such other duties of a general nature as may be assigned to him by the Chief of the Washington Office of The Panama Canal.
On and after April 1, 1914, there shall be transferred to the assistant auditor, and he shall be charged with the custody, care and preservation of, all records and property of the disbursing officer, and of the assistant examiner of accounts of the Isthmian Canal Commission, with which those officers shall be charged on March 31, 1914.




JACKSON V.'SMITH, AUDITOR,

The Chief of the Washington Office may, however, transfer to and place, in the custody of the disbu sing clerk, hereinafter provided for, such, of the property and records above described, as he may deem to be essential to enable the disbursing clerk to properly perform his duties under this order, but the disbursing clerk shall not be permitted, without specific authority from the Chief of Office, to keep a separate set of records and files. He shall be required to rely upon, and consult when necessary, the records and files in the office of the assistant auditor, in verifying the legality of claims and accounts submitted to him for payment, or to verify the details of any collection for which he is required to account. Disbursements will be made by the disbursing clerk only after examination of the claim or account in the office of the assistant auditor.
Such of the officers and employees employed in the office of the assistant examiner of accounts and the disbursing office of the Isthmian Canal Commission on March 31, 1914, as the governor determines to retain, shall be transferred to and employed in the Accounting Department in the United States, and their salaries fixed at such amounts as the governor deems just and reasonable.
There shall be a disbursing clerk for that part of the Accounting Department. in the United States who shall perform similar duties to those theatre required to be performed by the collector and paymaster on the Isthmus, in so far as there are such duties to.be performed in the United States, and shall be subject to the same supervision by the assistant auditor, as the collector and paymaster on the Isthmus are by the auditor. He shall give bond in such amount as may be fixed by, the governor or by his authority.
Such of the officers and employees as are transferred to and employed in the Accounting Department in the United States, shall be distributed between the office of the assistant auditor and that of the disbursing clerk, respectively, as the needs of the service require. They shall perform such duties as may be assigned to them by proper authority. They shall be subject to similar financial -responsibilities, and to the same general rules and regulations that have been prescribed for like officers and employees in the Accounting Department on the Isthmus.
It is the purpose of this order, and it shall be construed, as to require the assistant auditor of the Panama Canal to examine all claims and accounts before their payment by the disbursing clerk; to carry on all general correspondence in relation to claims and accounts required to be conducted by the Accounting Department in the United States; to prepare all vouchers and certify to the validity of all claims and accounts before they are submitted to the disbursing clerk for payment; to furnish to the disbursing clerk all, necessary data to enable that officer to make reply to any exceptions that may be taken to his account by the Auditor for the War Department; to keep all general records to be kept in the Accounting Department in the United States; to make all reports as to statistical data required to be sent to the auditor on the Isthmus; to give an administrative examination to all accounts of the disbursing clerk before they are transmitted to the auditor; to make an administrative examination of all claims which are to be submitted to the auditor for direct settlement; to keep a complete record of all collections to be made and all moneys received by the disbursing clerk; to certify to the correctness of the disbursing clerk's accounts for collections; to see that bills collectible are issued and collections made in all proper cases; to have charge of all general filcs which are required to be kept by the Accounting Department in the United States; and to perform such other duties as may be assigned to him by the auditor, or the Chief of the Washington Office,
The Executive Order of March 2 above quoted is as much the law as the Act of Congress or the Executive Order of January 27 hereinbefore referred to. It is an enlargement or explanation of section 6 of




DISTRICT COURT FOR THE CANAL 'ZONE.

the order of January 27. It clearly defines the duties and functions of the assistant auditor and conclusively Shows that such assistant in the United States is under the direction of the auditor on the Isthmus, who is the final auditor. And it will be observed this section last quoted states that the disbursing clerk under the assistant auditor in Washington shall be subject to the same supervision by the assistant auditor as the collector and paymaster on the Isthmus are by the auditor. It is plain that this section accentuates the fact that the assistant auditor at Washington is under the supervision of the auditor on the Isthmus, and this assistant is specifically directed to report to such auditor.
It seems that nothing further need be said to demonstrate that this auditor, the respondent in this case, is the final auditor. But he is more than an auditor because by the very provisions of the Executive Order creating his office he not only audits but he orders the disbursement of all funds for the language of the act charges him with the disbursement of the funds. It is a reasonable and consistent interpretation to say that the Executive Order shows that the disbursing clerks and paymasters under the assistant auditor in Washington and under the auditor on the Isthmus, the final auditor, are no more than pay clerks who are required to pay the vouchers as they have been audited by the assistant auditor in Washington, and by the auditor on the Isthmus who is vested with .the power of disbursement.
It seems to be incontrovertible that the two provisions of the two Executive Orders above quoted, one putting the Canal Act into operation, and the other amplifying and explaining the terms of the first order, are as much a part of the Panama Canal Act itself as if these two sections had been embraced in the act. I think the conclusion necessarily follows that the respondent is the final auditor so faras Judge Jackson's salary is concerned.
And I think also that it is not to be doubted that the auditor, under the provisions of the Canal Act, needs only to report to the President and to Congress. It is not believed if it had been the intention of Congress that the final auditor should be in Washington, and that the auditor on the Isthmus should be under some other official, that the office of assistant auditor would have been created whereby the assistant at Washington is to act under the auditor on the Isthmus. It is entirely consistent to say that The Panama Canal maintains what may be termed a branch office at Washington with the assistant auditor there to audit the accounts of that branch office; and as a part of his duty under section 5 of the Executive Order of March 2, 1914, he is required to send data to the auditor on the Isthmus and to transmit the examination of accounts to the auditor on the Isthmus.




JACKSON 10. SMITH, AUDITOR.

Recurring to the duties of the auditor of The Panama Canal, it is to be borne in mind that under the Adamson Act and Executive Orders in pursuance thereof he is charged with "the collection, custody, and disbursement of funds for The Panama Canal and the Canal Zone" as I have attempt 'ed to show. (Sec. 4 of the Adamson Act, and sec. 6, Executive Order, January 27, 1914, supra.) And in the so-called Sundry Civil Act of March 3, 1915 (Stat. at L., 63d Cong., 3d S., 883-840), the appropriation is made for expenditures requisite for and incident to the construction, maintenance, and operation, sanitation, and civil government of the Panama Canal, and Canal Zone, including the following: Compensation of all officials and employees *
* and for such other expenses not in the United States, as, *
* necessary to best promote the construction, maintenance, operation, sanitation, and civil government of the Panama Canal,
* as follows: For civil government of the Panama Canal and Canal Zone, salaries of the district judge $6,000, district attorney $5,000, and marshal $5,000, etc.
It is seen that expenses not in the United States, including the civil 'government of the Panama Canal, embrace the specific sum of $6,000 appropriated by the Act of Congress for the payment of the salary of the district judge, up to June 30, 1916. It is my opinion that in legal contemplation this fund is on the Isthmus and is subject to disbursement there under the direct authority of the auditor of The Panama Canal, who must report with reference 'thereto to the President and to the Congress, and who is not otherwise required to report.
Under the law and the practice obtaining in the Canal Zone in such case it is the duty of the auditor to make and deliver the pay voucher to relator for his salary at the end of each month, and under the same law and practice it is the duty of the paymaster, who is no more than a paying teller of the respondent, to pay the salary upon the certificate or voucher of the auditor there. Nothing is left to the judgment or discretion of the auditor in the matter of such disbursement. He is required to perform a ministerial duty and no more.
3. In his answer the respondent says that he ha's sought the advice of the Comptroller of the Treasury under the following provision of the Dockery Act (R. S., Vol. 2, 1892-1901, p. 216, Act of July 31, 1894):
Disbursing officers, or the head of any executive department or other establishment not under any of the executive departments may apply for and the Comptroller of the Treasury shall render his decision upon any question involving a payment to be made by them or under them.
And he insists that the comptroller has rendered a decision against Judge Jackson that precludes any action by this court.
Now the only question involved in the payment of the judge's salary is the one raised by the respondent who withholds $1,131.76 of the




DISTRICT COURT FOR THE CA14AL ZONE.

salary where the services and identity of judge Jackson are admitted. The pleadings in the case and the briefs submitted by counsel in behalf of the respondent, as well as the testimony and oral argument, show that the respondent did not submit to the comptroller a question of payment to be made by him as auditor. But, rather, that he did submit to the comptroller the question 'as to whether or not he as auditor had the right to retain portions of the relator's salary for the satisfaction of alleged indebtedness of relator to the United States or The Panama Canal.
The relator's salary does not fall under the category of a claim against the United States. It is fixed compensation earned by him and for Which a specific appropriation has been made and the manner of disbursement provided for. It requires no argument to show that the case at bar is different from one where a claim is made against the United States and judgment and discretion is vested in an accounting officer authorized by law to adjust and settle the claim. In such case as that the Comptroller of the Treasury shall upon application render his decision upon any question involving a payment to be made.
Here the salary was ascertained or fixed by law and the money for its payment appropriated by Congress as before stated. In legal effect it was on the Canal Zone, or in the hands or under the control of the disbursing officer, who is the respondent here. There was nothing left to the judgment or discretion of the respondent whose duty it was to disburse the money appropriated for the salary. Being satisfied of the identity -of judge Jackson it was the plain duty of the respondent to issue his warrant for the salary.
The salary of a judge who has served and for whose compensation specific appropriation has been made is not such a claim that affords any field for the operation of the Dockery Act. We are not without a guiding precedent. In the case of Benedict vs. U. S., 176 U. S., 357361, it was said:
The case in reality turns upon the meaning of the word "salary," as used in section 714. The word "salary" maybe defined generally as a fixed annual or periodical payment for services, depending upon the time, and not upon the amount, of services rendered as applied to district judges in general, and, indeed,
to every district judge except the judge of the Eastern District of New York, it doubtless refers to the salary of five thousand dollars fixed by the Act of February 24, 1891.
Such salary is an annual stipend payable in sickness as well as in health, for duties much more onerous in some districts than in others, and regardless of the fact whether such duties are performed by the judge in person, or by the judge of another district called in to take his place. It is a compensation which can not be diminished during the continuance of the incumbent in office, and of which he can not be deprived except by death, resignation, or impeachment. ,
There the Supreme Court of the United States distinctly declared that a Federal judge can not be deprived of his salary in whole or in




JACKSON V. SMITH, AUDITOR.

part except by death, resignation or impeachment. Of course, the appointment and qualification of a territorial judge who did not act as such but was removed from office by Executive Order would not entitle him to a salary. That was the case in U. S. vs. Guthrie, 17 How. 284, 302-34, which is hereinafter considered and differentiated from the present case.
If the judge can be deprived of a part of his salary for alleged indebtedness for house rent when such rental charge was fixed arbitrarily, that is to say, without his consent and without any authority of law, such charge could by the same token or assumed authority have been made $500 per month, and thus so adjusted as to absorb the entire salary of the judge. I do not think that such a conclusion would be more absurd than the contention of the respondent that how much of and for what purpose he can withhold the salary of the Judge, is a matter entirely in the judgment and discretion of the respondent, and that his action in such matter can not be reviewed by a court. There can not be such an autocrat.
Our Government can not be, reduced to a bureaucracy. Chief justice Marshall said that the Government of the United States has been emphatically termed a government of laws and not of men; and it is emphatically the province and duty of the judicial department to say what the law is. Marbury vs. Madison, I Cranch, 1. c. 165 and 177. And as pertinent here it may be added that the judicial department must be allowed to continue to adjudge in cases involving personal and property rights.
It was asserted by counsel for respondent that the salary of the judge was a claim or demand against the United States and that the amount alleged to be due by relator to The Panama Canal by way of house rent was a claim or demand against the relator and that, therefore, the auditor acted within the provisions of that section of the Dockery Act above-quoted in submitting this matter to the comptroller. But as I have said, it was a disputed claim merely because of the fact that the auditor, the respondent in this case, had made it so. It can not be said that the salary of the judge constituted a claim disputed or otherwise prior to the time that the respondent in this case saw fit to so assume. Furthermore, the Dockery Act provides that the auditor may submit to the Comptroller of the Treasury a question involving a payment to be made by the auditor. This was no question of a payment to be made from government funds by the auditor to a party asserting a right to such funds. It is a question of the auditor retaining from a Federal judge, whose salary had been provided for and appropriated by Congress, such amounts as he saw fit to withhold. The claim in dispute was not against the Government; it was against the relator. The act does not provide, and clearly never contemplated that the




DISTRICT COURT FOR THE CANAL ZONE.

auditor, should arrogate to himself the right to even consider that -any amount by way of claim or otherwise could'be deducted from the salary of a Federal judge based upon an alleged claim asserted by officials of the Government.
. Under this Dockery Act, therefore, this alleged claim was improperly submitted to the Comptroller of the Treasury by the respondent. It seems to me that the Comptroller of the Treasury should have advised the auditor when he submitted the alleged claim that he, the comptroller, had no authority to pass upon it. The law confers no such function upon the comptroller nor upon the auditor. Consequently, the opinion of the Comptroller of the Treasury was extra-official, was not required by law, and constituted purely a gratuitous act of the respondent in this case in furtherance of his endeavor to unlawfully withhold relator's salary from him. The contention of the counsel for respondent that this court is without jurisdiction to issue the writ of mandamus because the Comptroller of the Treasury had "judicially decided the question" is, I think, untenable.
4. I do not think that there is any merit in the respondent's contention that he performs his duty under administrative organization and not under statutory organization. When the Congress passed the Panama Canal Act of August 24, 1912, and authorized the Presiden t to put it into operation when he deemed it expedient, and further authorized him to create such offices as he deemed necessary to provide for the sanitation and civil government of the Canal Zone, when the President, acting under the express authority of Congress, by Executive Order of January 2 7, 1914, created an Accoun ting Department under the ,supervision and-direction of the auditor, who is the respondent; and when Congress later, in March, 1915, appropriated money to pay this relator's salary of $6,000 per annum to June 30, 1916, and provided 'that it be paid on the Isthmus, it thereby became the duty of this auditor, created in pursuance of the statute, to audit and pay the salary as Congress had directed in the Adamson Act and the Sundry Civil Appropriation Act of March 3, 1915.
It is not to be doubted that the Executive Orders of January 27 and March 2,1914, are in legal contemplation integral parts of the Panama Canal Act itself and these and the Appropriation'Act of March, 1915, appropriating the funds to pay the relator's salary on the Isthmus, are binding law compelling upon the respondent. In legal appreciation the respondent's office was created by statute; that is, by order in pursuance of a Statute, which has all the effect of a statute, and that thereby his duties are clearly defined.
5. The respondent contends that the Auditor of the War Department is the proper party against whom this relator should proceed, and predicates his contention upon this provision of the Act of Congress approved October 22, 1913:




JACKSON V. SMITH, AUDITOR.

The money accounts of The Panama. Canal, under the Panama Canal, Act of August 24, 1912 (Stat. at L., vol. 37,'p. 56O),shallcontinuetobeauditedbythe Auditor for the War Department.
It must be conceded that this statement is general and that, on the other hand, specific authority is given by the Executive, Order of the President of the United States to the auditor on the Isth mus to audit and disburse all funds appropriated by Congress in 'connection with The Panama Canal.
I do not think that there is necessarily any conflict between the the provision last above quoted and the Executive Orders promulgated under the Adamson Act. It is clear that prior to October 22, 1913, the Auditor of the War Department had never audited the salary of the district judge for the simple reason that the office of district judge was not created until the Panama Canal Act was put in force and effect by the Executive Order of the President in 1914. The office was created on April 1, 1914, and the present incumbent was confirmed by the Senate and received his commission as district judge on May 1, 1914. Consequently, whatever other accounts the Auditor for the War Department may have audited prior to October 22, 1913, he could not have audited the salary of the district judge of the Canal Zone, there then being no district judge, and, therefore, no salary of such officer to audit. The quotation from the act of October 22, 1913, states that the money accounts of The Panama Canal shall continue to be audited by the Auditor for the War Department. The salary of this relator is a new account which never existed and, consequently, did not need to be audited until after the promulgation of the Executive Orders of January 2 7, and March 2, 1914, creating the Accounting Department on the Isthmus, making the respondent in this case the final auditor, and defining the duties of certain of his subordinates both on the Canal Zone and at Washington.- I find no law making it incumbent upon the Auditor of the W ar Department to audit the salary of this relator, and there is nothing to show that in the absence of statutory authority, this official had any authority to pass upon or to audit such salary.
And, again, when the Sundry Civil Appropriation Bill of March 3, 1913, providing for the payment of the salary of the relator, and appropriating the amount thereof, and directing its payment, was passed, the fund for the payment of the judge's salary was placed under the control of the auditor on the Isthmus. Congress knew when this act making the appropriation for the judge's salary was passed, that in January and in March, 1914, the President had created the office of auditor on the Isthmian Canal, with an assistant at Washington, and that this law and the Executive Orders in pursuance thereof specifically defined the power and authority that was vested in the auditor on the Isthmus, and in his assistant at Washington. Furthermore, when




DISTRICT COURT FOR THE CANAL ZONE.

Congress made this appropriation for the payment of the salary of the district judge it was done almost two years after the act of October, 22, 1913. If the latter act could ever have had the meaning attributed to it by the respondent, the subsequent act of Congress, enacted presumably with the knowledge and approval of the two Executive Orders referred to, destroys the force of the provisions of the act of October 22, 1913, as insisted upon by the respondent. It follows that when Congress in March, 1915, appropriated the amount of relator's salary that had been previously fixed by the Adamson Act of August 24, 1912, Congress knew the provisions of the act of October 22, 1913, and also knew in making the appropriation for relator's salary, it would be paid pursuant to the Executive Orders hereinbef ore set forth.
It is familiar law that repeal by implication is not favored and it is a recognized canon that where two acts are in apparent conflict they must be so construed, if possible, as that they shall consist or harmonize with each other. And as a corollary the rule is that when two legislative provisions are in seeming conflict, the one being vague and general, and the other clear, and specific, the latter will control; and, further, that if separate fields can be found for the operation of the two seemingly conflicting provisions, then, in such way, must the apparent hostility between the two provisions be reconciled and each allowed to operate in its own particular field.
6. The respondent contends that this relator should seek a mandamus against the Auditor for the War Department at Washington. Were he to do so it seems to me such auditor would answer that the Adamson Act and the Executive Orders of January and March, 1914, and the Appropriation Act of March, 1915, placing the funds for the payment of the relator's salary under the control of this respondent, would preclude this relator from having any remedy against him. I believe that such contention would be fatal to relator's case there.
The respondent further suggests that judge Jackson can resort to the Court of Claims for the vindication of his rights. That court passes upon disputed claims, and whenever a judgment is rendered there it is the duty of Congress to appropriate money for its payment. Probably that tribunal would hold that demand for thepaymentof JudgeJackson's salary could not be a claim triable there;' that it is not a claim but a compensation fixed by law, for which payment is provided for by an existing'appropriation. Benedict vs. U. S., infra.
7. The rules of law governing mandamus against a public officer are well settled. The difficulty is making the proper application of the law in a particular case. Where a plain ministerial duty is imposed upon an executive officer-such a duty as leaves nothing to be determined according to his judgment and discretion-and hie refuses to act under such circumstances, mandamus is appropriate to compel him to per-




JACKSON V. SMITH, AUDITOR.

form his duty. This is, of course, a principle universally recognized.
I think the misunderstanding in this case is attributable to a misconception of the law. Some time a too free use of cyclopedias and digests is resorted to, and too little real study is devoted to adjudged cases cited. It must be understood that no stricture is intended upon the counsel who made the oral argument for the respondent, for he, the district attorney, presented his own well-prepared brief and has demeaned himself altogether as a thoughtful and competent lawyer.
The numerous cases cited in the briefs for the respondent may be divided into two classes: 1, cases where the Supreme Court held that executive officers could not be compelled by mandamus to act in matters which had been left to their judgment or discretion. Illustrative of this principle is U. S. vs. Lamont, 155 U. S., 303-310, where Mr. Justice White (now the Chief Justice), in the opinion of the court, said:
Much was said in argument at bar upon the question of when a contract is to be regarded as completed, under the circumstances here presented, and the discussion concerning the authority of the Secretary of War to review the action of an officer of engineers in such a case and to direct a new adjudication, has taken a wide range. We deem the consideration of both these points unnecessary in view of the relator's bids under the second advertisement and specifications, and his contract to do the work at a less price and under new conditions. It is elementary law that mandamus will only lie to enforce a ministerial duty as contradistinguished from a duty which is merely discretionary. This doctrine was clearly and fully set forth by Chief Justice Marshall in Marburyvs. Madison, 5 U. S. I Cranch, 137 (2:30), and has since been many times reasserted, by this court. See Kendall vs. Stokes, 44 U. S. 3 How, 87 (11:5060); Brahear vs. Mason, 47 U. S. 6 How. 92 (12:357); Reeside vs. Walker, 52 U. S. 11 How. 272 (13:693); Holloway ts. Whitelay, 71 U. S. 17 How. 225, 231 (15:226;228); United States vs. Edmunds, 72 U. S. 5 Wall. 563 (18:692); Gaines vs. Thompson, 74 U. S. 7 Wall. 347 (19;62); Cox vs. United States, 76 U. S. 9 Wall. 298 (19:579); United States vs. Schurz, 102 U. S. 378 (26:167); Butterworth vs. United States, 112 U. S. 30 (28-656); United States vs. Black, 126 U. S. 40 (32:354); Brownsville Taxing Dist. vs. League, 129 U. S. 493 (32:760); Noble vs. Union River Logging R. Co. 147 U. S. 165 (37:123).
The duty to be enforced by mandamus must not only be merely ministerial, but it must be a duty which exists at the time when the application for the mandamus is made. Thus in the case of ex parte Rowland, 104 U. S 04 (26:861), this court, speaking through Mr. Chief Justice White, said: "It is settled that more can not be required of a public officer by mandamus than the law has made it his duty to do. The object of the writ is to enforce the performance of an existing duty, not to create a new one."
Moreover, the obligation must be both peremptory, and plainly defined. The law must not only authorizethe act (Kentucky vs. Boutwell, 80 U. S. 13 Wall. 256 20:631), but it must require the act to be done. "A mandamus will not lie against the Secretary of the Treasury unless the laws require him to do what he is asked in the petition to be made to do" (Reeside vs. Walker, 52 U.S. 11 How. 272 (13:693); see also Cox vs. United States, 76 U.S. 9 Wall. 298 (19:579), and the duty must be "clear and indisputable," Knox County Comrs. vs. Aspinwall, 65 U. S. 24 How. 376.
And 2, cases where plain ministerial duty was enjoined upon executive officers and mandamus was used to compel its performance.




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Illustratie of this principle is Roberts vs. U. S., ex rel., Valentine (176 U. S. 221) where Mr. Justice Peckham, for the Court, said:
The writ was refused in the Black case, because, as the Court held, the decision which, was demanded from the Commissioner of Pensions required of him, in the performance of his regular duties as commissioner, the examination of several acts of Congress, their construction, and the effect which the later acts had upon the former, all of which required, the exercise of judgment to such an extent as to take his decision out of the category of a mere ministerial act. A decision upon such facts, the Court said, would not be controlled by mandamus. The circumstances under which a party has the right to the writ are examined in the course of the opinion, which was delivered by Mr. justice Bradley, and many cases upon the, subject are therein cited, and the result of the examination was as just stated.
In this case the facts are quite different. There is but one act of Congress to be examined, and it is specially directed to the Treasurer. We think its construction is quite plain and unmistakable. It directs the Treasurer to pay the interest on the certificates which had been redeemed by him, and the only question for him to determine was whether these certificates had been redeemed within the meaning of that act. That they were, we have already attempted to show, and the duty of the Treasurer seems to us to be at once plain, imperative, and entirely ministerial, and he should have paid the interest as directed in the statute.
This case comes within the exception stated in the Black case, that where a special statute imposes a mere ministerial duty upon an executive officer, which he neglects or refuses to perform, then mandamus lies to compel its performance; but the Court will not interfere with executive officers of the Government in the exercise of their ordinary official duties, even those whose duties require an interpretation of the law, the Court having no appellate power for that purpose. On this last ground the Court denied the writ.
Unless the writ of mandamus is to become practically valueless, and is to be refused even where a public officer is commanded to do a particular act by virtue of a particular statute, this writ should be granted. Every statute to some extent requires construction by the public officer whose duties may be defined therein. Such officer must read the law, and he must therefore, in a certain sense, construe it, in order to form a judgment from its language what duty he is directed by the statute to perform. But that does not necessarily and in all cases make the duty of the officer anything other than a purely ministerial one. If the law direct him to perform an act in regard to which no discretion is committed to him, and which, upon the facts existing he is bound to perform, then that act is ministe rial, although depending upon a statute which requires, in some degree, a construction of its language by the officer. Unless this be so, the value of this writ is very greatly impaired. Every executive officer whose duty is plainly devolved upon himn by statute might refuse to perform it, and when his refusal is brought before the court he might successfuly plead that the performance of the duty involved the construction of a statute by him, and therefore it was not ministerial, and the court would on that account he powerless to give relief. Such a limitation of the powers of the court, we think, would be most unfortunate, as it would relieve from judicial supervision all executive officers in the performance, of their duties, whenever they should plead that the duty required of them arose upon the construction of a statute, no matter how plain its language, nor how plainly they violated their duty in refusing to perform the act required.
In this case we think the proper construction of the statute was clear, and the duty of the Treasurer to pay the money to the relator was ministerial in its nature, and~ should have been performed by him upon demand. .The judgment of the Court of Appeals must be affirmed.




JACKSON V. SMWTH, AUDITOR.

The respondent cites a number of cases to sustain his assertion that mandamus will not lie in this case. He contends that this is an action against the auditor in such official capacity as he may have, and is in effect an action against the United States, and cites United States vs. Guthrie, Secretary of the Treasury, 17 How., 284, 302-34. Of course that case has been many times cited with approval by the Supreme Court of the United States. The principle was correctly applied there to the facts, but the case can not be a precedent here to support the respondent's contention.
There the relator Goodrich, on March 19, 1849, was duly commissioned Chief Justice of the Supreme Court of the Territory of Minnesota at a compensation of $1,800 a year, payable quarterly. The tenure of his office was four years. After having received his lawful compensation for the time he had served the relator was informed on October 22, 1851, by the Acting Secretary of State that the President had removed him from office and had appointed in his place Jerome Fuller. After the 4 years from the date of his commission had expired the relator preferred a claim before the First Auditor of the Treasury for the sum of $2,343 as compensation for the period that had elapsed from the date that he was removed from office to the termination of the 4-year period. The claim was rejected for the reason that there was no appropriation to pay his salary, and that the amount of the salary had been paid to Fuller who had fulfilled the duties of the office, and that the auditor and comptroller were bound to consider the removal of the relator and appointment of Fuller as legal and continuing. The Supreme Court affirmed the ruling of the Circuit Court in dismissing the application for the writ of mandamus upon the grounds that there is no power in the Circuit Court or in the Supreme Court to command the withdrawal of moneys from the United States Treasury to be applied in satisfaction of disputed claims against the United States; that no appropriation had ever been made to pay the salary of the relator, but that the appropriation had been made to pay the salary of the subsequent appointee of the President, who filled the office from which the relator had been removed; and that the acts of the auditor, the comptroller, and the Secretary of the Treasury in passing upon the claim were discretionary and quasi judicial and that they were not merely ministerial, and that, therefore the court had no power to mandamus these officials.
The principle announced as governing that decision has no application to the case at bar for the two cases are so different in essential particulars. A statement of these differences and further comment seem to be unnecessary. It is hardly necessary to add that the proceeding here is not an action against the United States but is an action to compel an official of the United States to do his plain ministerial duty under the laws of the United States.




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The respondent cites U. S. vs. Lynch, 137 U. S. 280. In that case the relator was ordered in March, 1872, by his superior officer to proceed& from Philadelphia to New York and thence by Pacific Mail to Colon, cross the Isthmus of Panama, and thence to Mare Island, California, and report for duty on board the U. S. S. Lackawanna. Relator was a naval officer. He traveled 88 miles overland from Philadelphia to New York and some thousands of miles outside of the United States. He claimed that he was entitled to be paid 10 cents a mile for the full number of miles traveled. The respondent, the Fourth Auditor, and the Second Comptroller of, the Treasury, answered that the relator had been paid 10 cents a mile for the total number 'of miles traveled in the United States, and his traveling expenses while traveling outside of the United States. It was found that for a number of years the Navy and Treasury Departments, had, with but a single exception, held that the 10 cents a mile did not apply to travel to, from, or in foreign countries but only to travel in the United States. This had long been the interpretation of the statute by the auditor and the comptroller. The relator sought to compel these officials by mandamus to interpret the statute differently from the way they had theretofore construed it-to compel them not only to exercise a discretionary or quasi judicial act but to exercise it in his favor. There the relator had at most a claim against the United States for money expended by him. No act had appropriated any money for him that was available and withheld by the respondents. The Court of Claims was the proper forum in which the relator in that case should have sought vindication for his claim if he had Any proper claim.
The case of Reeside vs. Walker, I I Howard 290, is relied on by the respondent. There Reeside had certain postoffice contracts with the Government of the United States. Alleging that he had been overpaid thereon suit against him was brought in the Circuit Court of the United States for the Southern District of Pennsylvania for the recovery of the sum of $32,709.62, the amount alleged to have been overpaid. Defendant filed a general demurrer and a counterclaim, and on trial being had a verdict was returned finding that the plaintiff was indebted to the defendant for $188,496.06. On May 12, 1842, the transcript of the record bore the following entry: "Motion for new trial overruled; new trial refused and judgment on the verdict, copy of assignment, etc., filed. "
Later the executrix of defendant sought to compel the Secretary of the Treasury, by mandamus, to enter on the books of the Treasury Department to the credit of the deceased the sum of $188,496.06, and to pay the same to the relator as executrix of the deceased. The Supreme Court refused to grant thewrit for the reasons: That from the record no judgment appeared to have been given for the amount




JACKSON'V. SMITH, AUDITOR.

of the verdict; the relator failed to show the entry of a judgment; and that the verdict of the jury'merely' laid the foundation 'for a scire facias to issue and a hearing to be had on that if desired. IThe Court said that "The petitioner and her husband have neglected to pursue the case in that way to the final judgment, and, hence, have offered no evidence of one, of the verdict of indebtedness to Reeside by the United States." On these two points the Court acted, and the rest of the case is merely obiter dicta. It was further stated, however, .that there was no appropriation of Congress to pay the claim and that it was "a well known Constitutional provision that no money can be taken or drawn from the public treasury except upon an appropriation by Congress."~
The respondent refers to the United States vs. Bank, 104 U. S., 733, as a supporting authority. That case was an appeal from the Court of Claims. The bank had paid certain taxes and afterwards discovered that $972.69 was wrongfully exacted and paid. It then sought the refund of that amount. The Commissioner of Internal Revenue and the Secretary of the Treasury approved the payment of the claim and the commissioner certified its allowance. -Payment was refused by the officers of the Treasury. The Court of Claims decided in favor of claimant and against the United States, and the Supreme Court sustained this ruling. There is nothing more to that case.
United States vs. Kaufman, 96 U. S., 369, is cited by the respondent as an authority. That was an appeal from the Court of Claims, which had held that it had jurisdiction of a suit to recover an excess amount paid by way of special tax, and that an allowance of the claim by the 'Commissioner of Internal Revenue was sufficient, and that the court did not need to go behind the allowance and find the facts in respect to the original claim. The Supreme Court of the United States sustained that decision.
It will be noted that although the four cases above cited laid down general principles of law which are well recognized they have absolutely no analogy to the case now under consideration.
Buchanan vs. Alexander, 4th How., 20, is cited by the respondent to sustain the proposition that money in the hands of a disbursing officer is money in the Treasury of the United States and can not be reached by attachment or other process. In that case seamen of the frigate Constitution were indebted to boarding house keepers in Norfolk, Va. They sought to attach the wages of these seamen in the hands of the purser of the vessel. The Supreme Court held that the money was not subject to attachment. In the case at bar no one corresponds to the boarding house keeper, no one to the seamen, and no one to the purser, and no writ of attachment is sought. The respondent contends that the principle recognized in Mississippi vs. First Comptroller of
MR 97966.-6




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the Treasury, Purham, (4th Mackay, 235),,, is applicable here, I am unable to examine this case as the report in which it is published is not to be had on the Zone. The respondent gives in his brief the following purported excerpt from the opinion:
That a court must not permit the United States to be sued by a mandamus directed to one of its officers where it could not be sued directly unless by its own consent under some special statute allowing it. Now it does not require the argument to manifest that a refusal by an officer of the Treasury Department whose general duty under the law is to allow and take steps to issue a warrant for the payment of any claim, is a refusal of the claim by the United States for the time being; that a mandamus against him to compel the allowance and payment thereof, is a suit against the United States, and that it is none the less a suit a against the United States because the ground or notices of refusal to allow may be obviously and notoriously without legal justification. In other words, that no error of judgment or capriciousness of conduct can destroy, for the time being, the quality of agent and actor in the name and oa behalf of the Government of theproper Treasury official in disallowing the claim of any State or individual for money due or alleged to be owing by the United States.
I fail to see what bearing that decision has upon the instant case, for judge Jackson's salary is no t a claim and there is no dispute in ,,respect to the payment of the same except that which arises from the denial of the authority of the auditor to withhold a part of the ascertained and fixed salary. I have, dealt. with this phase of the case in another part of this opinion.
Louisiana vs. McAd oo, 234 U. S., .627, is. cited by the respondent. In that case the State of Louisiana, through its Attorney General, sought to obtain permission to file a petition against the Secretary of the Treasury and, the Assistant Secretary of the Treasury in order to review their official judgment as to the rate of duty to be exacted under various tariff acts. In that case the Court said that it the State of Louisiana, as a producer of sugar, could review the action of the Secretary of the Treasury in determining the rate to be collected on Cuban sugar, any consumer, though not an importer, might make a similar complaint if in his judgment the Secretary of the Treasury exacted a higher rate than justified by the law, thereby enhancing the price he must pay in the market upon the imported articles which he used. The Court held that it was an attempt to review the official action of the Secretary of the Treasury in the, exercise of his judgment as to the rate which should be demanded under his construction of the tariff act, and that such suits would. operate to disturb the whole revenue system of the Government, and affect the revenues which arise therefrom. Furthermore, it was stated that such a suit would obviously be one against the United States as such.
The respondent cites United States, ex rel., Goldberg vs. Daniels, 231 U. S., 218. That was a petition for mandamus, praying that the Secretary of the Navy be directed to deliver the U. S. cruiser Boston to the




JACKSON V. SMITH, AUDITOR.

petitioner. It was'asserted that the, petitioner had bid more than the appraised value of the ship which, after survey, condemnation and, appraisal, had been stricken from the naval registry under the act of August 5, 1902, and proposals for the purchase of which the Secretary of the Navy had advertised. After the petitioner sent his certified check to the Secretary of the Navy, the Secretary refused to deliver the vessel and returned the check. The answer admitted the fact, and set up that the bid was not the acceptance of an offer but was -only an offer in itself subject to be accepted or not, at the discretion of the Secretary, and that the Secretary never accepted the petitioner's bid, the Government having decided to lend a cruiser to the Governor of Oregon for use by the naval militia of that State. The petition was ref used by the court below on the ground that the discretion Of the Secretary was not ended by the receipt and opening of the bids even though they satisfied all the conditions-prescribed. This judgment was. affirmed.
In Ness vs. Fisher, 223 U. S., 638, referred to by respondent, the Secretary of the Interior refused to accept, as conforming to the Timber and Stone Act of June 3, 1878, an application to purchase under that act 160 acres of. public land in the Roseberg Oregon Land District. The relator sought to compel the Secretary of the Interior to accept his application. It had been refused by the Secretary of the Interior, who ruled that the application was objectionable in that it was made. upon information and belief and not upon personal knowledge; that it was in fact for cultivation and valuable chiefly for its timber, and that it was uninhabited and con tained no mining or other improvements. The Court said that it was confronted with the question, not whether the decision of the secretary was right or wrong, but whether a decision of that officer, made in the discharge of a duty imposed by law and involving the exercise of judgment and discretion, could be reviewed by- mandamus and he be compelled to retract it and to give effect tov another finding, not his own and not having his approval. Manifestly the Court of Appeals was right in its refusal to issue the writ of mandamus, and the Supreme Court sustained the ruling.
In Champion Lumber Co. vs. Fisher, 227 U. S., 445, on the respondent's brief, the petitioner sought to compel the Secretary of the Interior and the Commissioner of the General Land Office, by writ of mandamus, to issue a, patent for lands. It seems that the commissioner and the Secretary of the Interior were advised by an agent, whom they had appointed to investigate, that flagrant fraud had been committed, and they were requested to withhold patents to the lands. Thereupon the commissioner directed the Registrar and Receiver, Jackson, to suspend action on commutations and proofs until further investigation. It was further shown by the report of another special agent that the




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entry had been made for speculative purposes with no attempt to comply with the requirements of the law, and the recommendation was made that the entry be canceled on the ground of nonremedy, noncultivation, nonimprovement, and abandonment. The commissioner directed that a hearing be had. Petitioner moved for a stay of proceedings, and claimed that his entry should be patented without further proceedings. The motion was denied by the commissioner, and this denial overruled by the Secretary of the Interior who later denied a motion to review his decision, finding that a protest had been filed against the patent within two years from the issuance of the receiver's receipt, and holding that the case should proceed to hearing on the special agent's charge. The petitioner then sought relief in the court, praying that the commissioner and the Secretary of the Interior be directed by mandamus to issue the patent as heretofore stated.
The court held that this was an attempt to coerce the Secretary of the Interior in the exercise of his lawful discretion and judgment. It was said: "The case was, therefore, submitted and decided upon the issue whether the action of the Secretary was justified in the exercise of his lawful discretion because of the facts disclosed in the record." The petitioner did not challenge nor did the Court pass upon the validity of an authority exercised, nor was the existence or extent of the authority or duty of an officer of the United States drawn in question in the sense in which it is used in the statute, the Dockery Act. This case was ultimately decided on the ground of jurisdiction; that the petition for the writ of error should be denied. The Supreme Court held that the case was not one that was appealable to that court under the fifth clause, section 250, of the Judicial Code, and, by way of Obiter, that the action of the Secretary of the Interior was wholly discretionary and, therefore, not subject to review by mandamus.
In Oregon vs. Hitchcock, 202 U. S., cited by respondent, the Supreme Court held that the immunity of the United States from suit prevented a State from maintaining in the Supreme Court of the United States a suit against the Secretary of the Interior and the Commissioner of the General Land Office to restrain them from allotting and patenting in severalty swamp lands within the limit of an Indian reservation. The Court further said that it could not interfere with the allotment and patenting by the Land Department of swamp lands within the limits of an Indian reservation while the legal title was still in the Federal Government. In that case the Court stated:
Now the legal title to these lands is in the United States. The officers named as defendants have no interest in the lands or the proceeds thereof. The United States is proposing to sell them. This suit seeks to restrain the United States from such saleto divest the Government of its title and vest it in the State. The United States is, therefore, the real party affected by the judgment, and against which, in fact, it will operate, and the officers have no pecuniary interest in the matter. If whether a suit




JACKSON V. SMITH, AUDITOR.

is one against the State is to, be determined, not by the fact of the party named as defendant on the record ', but by the result of the judgment or decree which may be entered, the same rule must apply to the United States. The question whether the, United States is a party to A controversy is not determined by the merely nominal party on the record, but by the question of the effect of the judgment or decree which can be entered.
The case was decided against the relator on the ground that the court had no jurisdiction as it was manifestly a suit 'directly against the United States to seek to restrain it from selling lands that belonged to it; that the court would not interfere with the Land Department in its administration; and that until the legal title to lands passes from the Government inquiry as to equitable rights comes within the cognizance of the Land Department. The Court stated that it could not anticipate the action of the Land Department, or take upon itself the administration of the land grants of the United States.
Again the respondent says that:
The courts will not interfere by mandamus with the executive officers of the, Government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law. Dunlap vs. Black, Commissioner of Pensions, 128 U. S. 40.
In that case the Commissioner of Pensions adopted an interpretation 'of the law adverse to relator by refusing a pension certificate, and his decision was confirmed by. the Secretary of the Interior. The Court stated that it had no right to review such decision. It declined to interfere by mandamus with the Executive Orders of the Government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, but held that when executive officers refuse to act in a case at all, or when by special statute or otherwise, a mere ministerial duty is imposed upon them, which they were bound to perform without further question, then, if they have refused to act, a mandamus might be issued to compel them. In that case the Commissioner of Pensions and -the Secretary of the Interior acted in the discharge of a quasi judicial function. This paragraph from the opinion of the court is sufficient to show that it has no bearing in this case:
Adjudged by this rule the present case presents no difficulty. The Commissioner of Pensions did not refuse to act or decide. He did act and decide. He adopted an interpretation of the law adverse to the relator, and his decision was confirmed by the Secretary of the Interior, as evidenced by the signature to the certificate. Whether, if the law were properly before us-for consideration, we should be of the same opinion, or of a different opinion, is of no consequence in the decision of this case. We have no appellate power over the commissioner, and no right to review his decision. That decision and his action taken thereon were made and done in the exercise of his official functions. They were by no means merely ministerial acts.
The respondent cites the case of Schillinger, et al., vs. the United States. That was an appeal from a judgment of the Court of Claims,




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dismissing a suit brought by plaintiff against the United States to -recover damages for the wrongful use of a patent for improvement in concrete pavement. It was nothing more nor less than an action in tort against the United States. The Supreme Court held that the Court of Claims was correct in deciding that it had no jurisdiction of a tort action against the United States, and that without its consent the United States could not be sued.
8. The respondent insists that the relator is indebted to the United States or the Canal Zone as hereinbef ore stated. Is this true? Whether it, is or not, the relator denies such indebtedness and his case is justiciable and can not be determined by a mere ministerial officer who has undertaken to decide without the intervention of a court or a judge and jury. It seems rather incongruous, to say the least of it, that this auditor should deny his authority and duty to pay the relator his salary and in the next breath assert that he has the authority and the discretion to withold from the relator $1,131.76 of his salary for the alleged but denied indebtedness.
It is indisputable that the relator does not owe for house rent or electric lights unless there was some law or some Executive Order in pursuance of an act of Congress which imposed the duty to pay or authorized the collection charges for rent and lights. As a matter of fact there was never any Congressional legislation or any ordinance of the Isthmian Canal Commission, or Executive Order of the President, or any regulation of the Governor of The Panama Canal, providing for the collection of rent or electric light charges for the occupation of government quarters and lighting the same in the Canal Zone until the promulgation of the Executive Order of the President of the United States under date of February 2, 1914. Sec. 17 of this order is as follows:
Where practicable, such bachelor quarters on the Isthmus as may be available from time to time, will be assigned to all employees desiring them. Family quarters when available, will be assigned under such rules as may be prescribed by the governor, and charges will be made for rent, fuel and electric current, at such times and in accordance with such regulations as the President may hereafter establish.
In pursuance of this provision of the Executive Order, the President promulgated on January 15, 1915, another Executive Order in this language:
By virtue of the authority vested in me it is hereby ordered:
1. Pursuant to the provision contained in paragraph 17 of the Executive Order of February 2, 1914, fixing the conditions of employment governing employees of The Panama Canal and the Panama Railroad Company on the Isthmus of Panama, a charge will be made for rent, fuel, and electric current on and after March 1, 1915.
Rent. 2. The rental will be based on a percentage of the value of the quarters occupied, the rate percentum to be the same for all quarters, and the value of the quarters to be appraised by the Governor of The Panama Canal. The amount to be




JACKSON V. SMITH, AUDITOR.

collected should be sufficient to defray the cost of maintenance of the quarters and grounds, maintenance and renewal of furniture, collection and disposal of garbage, and for bachelor quarters janitor service.' No charge will be made for water.
Fuel. 3. Fuel will be sold to employees at cost delivered at quarters.
Electric current. 4. The charge for electric current will be based on the cost of th6 cu rrent delivered to the quarters. When practicable the current used will be measured by meters; otherwise a charge will be made for each lamp or other device installed.
5. Where employees for the good of the service are required to live lin certain designated quarters, one-half of the rental will be remitted.
6. When an officer of the Army or Navy is detailed for duty with The Panama Canal and the amount of extra compensation of the position he occupies over and above his official salary as an officer of the Army or Navy is not sufficient to cover his rent, he will not be charged for rent, but will receive no extra compensation.
7. The Governor of the Panama Canal is charged with the duty of issuing such instructions as may be necessary to carry out this order and to fix and change from time to time if necessary the rates and charges herein outlined subject to the general instructions provided.
8. The free use of quarters, free fuel and free electric current are not, under the conditions of employment now governing, a vested or contract right of employees but revocable privileges, which it has been considered advisable to continue until the permanent force was organized. The revocation of these privileges shall not be made the basis for increasing salaries or wages or otherwise increasing compensation.This latter Executive Order became effective March 1, 1915, and was continued in force, and under it rent was charged against employees of The Panama Canal and the Panama Railroad Company for three months thereafter. On May 23, 1915, the President made the following Executive Order, superseding or suspending the operation of the above mentioned, order of January 15, 1915:
By virtue of the authority vested in me, it is hereby ordered that the Executive Order of January 13, 1915, relative to charges for rent, fuel and electric current, furnished employees of The Panama Canal and the Panama Railroad Company on the Isthmus of Panama, is modified by suspending from the operation thereof so much as relates to rent, fuel and lights during the period of actual construction of the Panama Canal but not later than June 30, 1916.
It must be observed that during the time for which judge Jackson is sought to be charged for the rent of the residence and for lighting the same there Was no statute or Executive Order authorizing the making such charges and there is no authority for withholding the salary. In other words, prior to March 1, 1915, there was no authority to charge or collect from any one rent for houses or quarters, or for lighting the same, on the Canal Zone. It is manifest that prior to that date it had not been contemplated by Congress, or by the Secretary of War, or by the Canal Zone officials, that rental charges would be made for the occupancy of quarters, and lights, on the Canal Zone. The houses were erected, not for rental purposes, but for the use of the employees of The Panama Canal, The Panama Railroad, and other governmental functionaries who might from time to time, in the discharge of their official duties, be required to reside in the Canal Zone. The purpose




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of the United States in acquiring the Canal Zone was to use it as a necessary appurtenance for the construction of the Isthmian Canalfor auxiliary works of Canal construction such as abodes for housing employees, land the like. It will not be insisted that it was the intention of the United States to engage in the real estate business for profit, or that there was any intention on the part of Congress that a rental should be charged against judicial or other officers who were obliged to live in the Canal Zone.
Moreover, the order of March 1, 1915 (above quoted), was the only provision of law for the collection of rents from any one, and that order applied to employees of The Panama Canal and the Panama Railroad and not to the district judge of the Canal Zone. But treating the judge as an employee then we find that for a period of three months less six days, the Executive Order authorizing the collection of rent from employees of The Panama Canal and the Panama Railroad was operative and that it was then suspended as to the persons or class of persons to whom it had been made applicable, namely to the employees of The Panama Canal and the Panama Railroad Company. This Executive Order which authorized the collection of rent from the employees was suspended during the time of the occupancy of the house by judge Jackson and for which he is charged rent by the respondent. It must, therefore, be held that there was an absence of authority on the part of any one to make such a charge.
It may be well to remember in this connection that no private person could erect a house on the Canal Zone for his individual use. The judge was required by act of Congress to reside in the Canal Zone, and under the circumstances it was not possible for him to do so except by living in one of the houses owned by the Government. That he should occupy such house seemed to have been understood as being in the contemplation of Congress. In the absence of any legislative expresssion it can not be believed that it was the intention of Congress that the judge, whose office was created by Congress, and who was required' to reside in the Canal Zone, should rent quarters from the Government or from any subsidiary governmental agency.
9. But the respondent contends that hehlas the right to withhold a part of the salary of the judge, fixed and appropriated for by law, because the Adamson Act provides that the judge shall not receive any emoluments except his salary. Pretermitting for the time being the consideration of other phases of the case or questions, let us ascertain the meaning of emoluments. The definition of the term is ascertained from adjudged cases cited in Words and Phrases, vol. 3, p. 2367, where it is said:
Emolument is the profit arising from office or employment; that which is received as compensation for services, or which is annexed to the possession of office, as salary, fees, and perquisites.




JACKSON V. SMITH, AUDITOR.

I think it may be said, therefore, that an emolument is -something positively, and directly conferred as compensation or gain that the holder of an office receives and not something necessarily, inseparably and incidentally used by him in the discharge of his duty, a duty for which he is paid a fixed salary. Certainly it would not be contended that an employee, for instance, a locomotive engineer, could be charged for the use of the locomotive which was necessary in the performance of work he was hired to do. We must not forget it was the expressed intention to have the judge reside in the Zone, and this intention is just as plain as was the other intention that he should perform judicial' work. His physical' presence on the Zone was required, and he could, not possibly obtain a habitation there except from the Government.
This question here is analogous to the one involved in McCoy vs. Handlin, 153 N. W., 361. In that case the contest was over an extra allowance of a specified sum per month to such judges of the Supreme Court as take up their residence at the capital (of South Dakota) to, meet the extra expenses thereby caused. The constitutional provisions of the State were that "They-the Supreme Court judges--shall receive no fees or perquisites whatever for the performance of any duties connected with their offices. It shall not be competent for the legislature to increase the salary of the officers named in this article except as hereinafter provided." And, again, that "The judges of the Supreme Court-shall each receive such salary as may be provided by law, consistent with this Constitution, and no such judge shall receive any compensation, perquisite or emolument for or on account of his office in any form whatever, except such salary."
An extra allowance by the legislature of a specified sum per month for such of the judges of the Supreme Court as take up their residence at the capital, to meet the extra expenses thereby caused, was held, not to be inhibited by the constitutional provisions quoted. The proceeding there was for mandamus against the auditor for.the allowance of a specified sum to such of the judges as had taken up their residence at the capital, etc., and was resisted by the auditor upon the ground that the allowance of such sum per month was in contravention of the State constitution. The decision of the court was against the contention of the auditor. The opinion was well considered, instructive, and is illuminating in the consideration of the instant case. There it was said:
It is clear that the legislature did not intend, in the enactment of such legislation to increase the salaries of the judges, or to grant them any perquisites or emoluments for the discharge of their duties, but only intended to assure them in so far as possible that for the performance of their official duties alone, and not for the performance of such duties and the payment of the expenses incident thereto, they should receive the salaries provided by law for the performance of such duties.




DISTRICT COURT VOR THE CANAL ZONE.

And, again, the Court said:
"These men (the framers of the constitution of South Dakota) must have known that Sec. 1, Art. 2, of the Federal Constitution, declared that the President should receive for his services a compensation 'which shall neither be increased nor diminished, during the period for which he shall have been elected; and he shall not receive within that period any other emoluments from the United States or any of them.' These men must have known that the word 'emolument' was, as recognized by every authority, a term broad and comprehensive, one which includes within it 'perquisites,' ,salary,' 'compensation,' 'pay,' 'wages,' and 'fees.' These men must have known that, with the above provisions of the Federal Constitution in force, the Congress of the United States, a body of men which at all times during the history of this Government has had among its members many of the greatest constitutional lawyers of the day, had enacted legislation under which the President, for nearly a century prior to the framing of our Constitution, had been furnished a home, horses, carriages, servants, household equipment, and many other things incidental to and appropriate to his high office. These men must have known that such Federal legislation had never been questioned either as regards its propriety or its constitutionality. These men must have known that in practically every State in the Union (in many of which there were constitutional provisions similar to the one above referred to in the Federal Constitution and to the ones relied upon by defendant in this case) there had been legislative enactments making provisions for the several governors similar to those made by the Federal Congress for the President, as well as innumerable measures appropriating money to be paid other officers to recompense them for expenses incurred in the discharge of their official duties. Is it possible for anyone to presume that these men, with all these facts in mind, intended by the words used in our Constitution, to prohibit allowances for expenses incident to the discharge of public duties? Further light has since been thrown upon the construction given to the provision of the Federal Constitution above referred to by the act of June 23, 1906 (34 Stat. at L. 454, Chap. 2523, Comp. Stat. 1913, sec. 225), which provides: that 'hereafter there may be expended for or on account of the traveling expenses of the President of the United States such sum as Congress may from time to time appropriate, not exceeding $25,000 per annum, such sum when appropriated to be expended in the discretion of the President and accounted for on his certificate so lely."'
Under appropriations thereafter made by Congress, Presidents Roosevelt and Taft received, and to-day President Wilson is receiving, thousands of dollars each year. So far as we know, it has never been suggested that the money so allowed was an "emolument," and therefore unconstitutional. No one has ever seen fit to accuse those Presidents of being grafters. The judges of the Federal Courts, whose salaries are fixed by a law declaring such salaries shall be the "compensation for their official services," draw from the United StatesTreasury a sum not exceeding $10 per day when absent from the plates of their residence. Act March 3, 1911, (chap. 231, sec. 259, 36 Stat. at L. 1161, Comp. Stat. 1913, sec. 1236). This allowance is not given as an increase of salary, but to cover the expenses incident to their being away from home in the discharge of their duties.
Paraphrasing, it may be said that the use of the house by judge Jackson can not be held'to be, an increase of salary, but was no more than the necessary inseparable incident to his compliance with his




JACKSON V. SMITH, AUDITOR.

positive duty to reside within the Canal Zone during the term of his office. (Sec. 8,.supra, Vol. 37, Part 1, U. S. Stat. at L., 62d Cong., p. 565.) The relator was compelled to reside within the Canal Zone, and necessarily could occupy no house except one furnished by the Government. It seems fair to say that if Congress had intended the judge to pay rent for the, occupancy of a house in the Canal Zone, when it required him to reside there, it must be presumed that it would have been so stated in the Adamson Act. The lawmakers knew that the United States Government was the owner of all buildings in the Canal Zone, and that the judge required to reside there must occupy one of those buildings. By way of reinforcement of this view it may be said that the members of Congress were familiar with the fact that under the acts or ordinances of the Isthmian Canal Commission the former members of the Canal Zone judiciary had occupied houses free of rent. Act I of the Isthmian Canal Commission of August 16, 1904, in referring to each of the Circuit and Supreme Court judges, provided as follows:
During his term of office he shall be furnished a dwelling house or apartment, or in lieu thereof a sum of money equal to 8 per cent of his annual salary, at the option of the Commission.
The Adamson Act continued in operation all the acts of the Isthmian Canal Commission not repugnant to the provisions of that act itself. This is shown by sec. 2, par. 2, of the act as follows:
That all laws, orders, regulations, and ordinances adopted and promulgated in the Canal Zone by order of the President for the government and sanitation of the Canal Zone and the construction of the Panama Canal are hereby ratified and confirmed as valid and binding until Congress shall otherwise provide. The existing courts established in the Canal Zone by the Executive Order are recognized and confirmed to continue in operation until the courts provided for in this act shall be established.
This provision has direct reference to the courts, consequently, when the act required the judge to reside within the Canal Zone his occupancy of a house belonging to the Government or its subsidiary, in the Canal Zone free of rent, when there had never been any stipulation for the payment of rent, can not be considered an emolument. It was no increase of salary. It was no profit. His occupancy of the house as a residence constituted an incident, and perhaps also an inducement, to the discharge of his duty while away from his home in the United States.
In his letter, introduced in evidence in this case, the Attorney General of the United States, Mr. Gregory, when called upon by the Governor of the Panama Canal and the auditor, the respondent here, to pass upon the legality or illegality ofwithholding from the relator his salary, cited with approval the Benedict case, supra, and appropriately said that the question which the auditor, respondent here, has taken upon himself the authority to decide, and to finally decide, "was one




DISTRICT COURT FOR THE CANAL ZONE.

for judicial rather than administrative determination, and that it was a claim that could only be enforced through proceedings in the courts.". Mr. Gregory is not the only Attorney General who has passed upon cases involving this question. On June 27, 1893, Mr. Maury gave the opinion, as to the right of the Secretary of the Treasury to withhold from the salary of a Federal judge an amount which had been adjudicated against him in favor of the United States, in a final judgment (Ops. Atty. Gen. 22, 626), as follows:
Sir: It appears by the letter of the First Comptroller of the Treasury of May 28, ultimo., addressed to you, that the United States has recently recovered a judgment in ,the Supreme Court of the District of Columbia against the Hon. Nathan Goff, as surety on the official bond of James M. Ewing, formerly disbursing clerk of this department, for the sum of $9,000 with interest and costs, and you have referred the letter to me for an opinion upon the following questions presented therein:
1. Does the act of March 3, 1873 (18 Stat., 48 1), authorize and require the Secretary of the Treasury to withhold the salary due a public officer who is indebted to the United States?
2. If so, is there any exception in the case of a Federal judge?
As I may not, however, give an opinion on a hypothetical question without exceeding my power as defined by law, I must, in complying with your request, confine myself to the case calling for the action of your department, and shall accordingly proceed to consider whether the act of March 3, 1875, chapter 149 (18 Stat., 481), authorized and requires the Secretary of the Treasury to withhold judge Goff's salary as a Circuit judge of the United States for the Fourth Circuit, until the judgment recovered against him as aforesaid shall have been satisfied in that way.
The act of March 3, 1875, is entitled "An act to provide for deducting any debt due the United States from any judgment recovered against the United States by such debtor," and provides as follows:
That when any final judgment recovered against the United States, or other claim duly allowed by legal authority, shall be presented to the Secretary of the Treasury for payment, and the plaintiff or claimant therein shall be indebted to the United States in, any manner, whether as principal or surety, it shall be the duty of the Secretary to withhold payment of an amount of such judgment or claim equal to the debt thus due to the United States.
It would be, in my judgment, to abandon the ordinary sense of language and to adopt an unlooked for interpretation to hold that it was in the contemplation of Congress to include, under the expression "claim duly allowed by legal authority," the right of a Federal judge to have his salary paid to him out of money in the Treasury appropriated by law for that purpose.
The allowance of a claim against the United States, involving a discretion which partakes of a judicial character, but it is apparent that there is no room for the exercise, by any "legal authority," of such a discretion with reference to the salary of a judge, which the law requires to be paid, if there is money in the Treasury applicable to it, and failure to pay which is an official delinquency which may be summarily corrected by mandamus.
Without going into the constitutional question and the question of policy suggested in the first comptroller's letter, I content myself with saying that this is not a case where the ordinary sense of the langauge of the statute should be extended by construction.




JACKSON V. ,SMITH, AUDITOR.

In addition, Attorney General Black under date of July 21, 1*858, rendered an opinion (Vol. 9, Ops. Atty. Geni., p. 198) an excerpt of which reads as follows:
Though I doubt the power of the Secretary, in the present state of the law to set up a counterclaim of any kind in order to avoid payment, of a judgment which Congress has ordered him to pay, yet I do not think there would be impolicy or danger of giving him such power, where the counterclaim is also a judgment, or where it is established by evidence so conclusive that the opposite party is estopped from denying it. In such a case, he would be required to pass on nothing which is open to dispute. His function would be merely ministerial, consisting in nothing but the substraction of one claim from the other and ascertaining the difference. But here is a claim fiercely contested. It has never been adjudicated in favor of the Government. If it has ever been passed upon by any court, the judgment was against it. There is not a word on record about it. All the evidence concerning it pro and con is in pais. Every fact asserted by one party is not only open to contradiction by the other, but is in fact contradicted, and I have no doubt is most potently believed to be untrue. Not only are all the facts vehemently disputed, but the parties are as .wide asunder as the poles on every question of law. It is proposed that this complicited entanglement shall be settled in the chamber of an executive officer, without a trial, without a judge or jury, without examining witnesses, and without hearing counsel.
No such jurisdiction is given to the Secretary of the Treasury by any law, and if the Constitution is not a dead letter Congress can not confer it. The fifth amendment declares that no person shall be deprived of his life, liberty, or property, without due process of law." This means, and has always been held to mean, that the right of a citizen to his property, as well as his life or liberty, could be taken away only upon an open, public, and fair trial before a judicial tribunal, according to the forms prescribed by the law of the land for the investigation of such subjects. If an executive officer can make an order that the widow and children of Reeside shall be deprived of twenty-four thousand dollars without a trial, then the same officer may, with equal propriety, issue a warrant to hang them, since the Constitution puts life and property on the same footing * *
If Congress had power to confer this kind of jurisdiction on the head of the Treasury Department, and would exercise it by passing a law to invest him with all the authority which courts and juries together are clothed with by any defalcation act ever passed, still the Secretary could not set off this claim against that of Mrs. Reeside. Her demand is res adjudicaa-fixed and settled by a judgment-and the payment of it in full is sanctioned by an Act of Congress. The counterclaim of the Government rests on parol evidence disputed and denied. Now, it is well settled that where one party has a judgment the other can never set off against that judgment a claim not reduced to judgment, however clearly he may be able to prove it. He is always remitted to his action.
For these reasons, and for others which might be adduced, I am perfectly satisfied that the Secretary of the Treasury has no power to stop the payment of the money 'adjudged to Mrs. Reeside, however well he may be satisfied in his own mind that the counterclaim is well founded. If he is convinced of the indebtedness alleged, he should order a suit to be brought and give the party a fair chance to be heard before the regular tribunals of the country. I am not aware that such power was ever claimed before it was used by the late Secretary in this case; but if it, be a practice of the department it ought to be immediately abolished, for it is unjust, unlawful, and unconstitutional.




DISTRICT COURT FOR THE CANAL ZONE.

This langauge is apposite in the present controversy.
As to the force and legal effect of an official opinion of the Attorney. General of the United States when rendered to any executive or administrative officer we can do no better than to refer to the opinion, rendered to the Secretary of the Treasury on date of February 12, 1894, by the Attorney General, Richard Olney (Ops. of Atty. Gen., Vol. XX, 722), as follows:
The act of 1870, section 4, establishing the Department of justice, provided that written opinions prepared by a subordinate in the department may be approved by the Attorney General, and that "such approval so indorsed thereon shall give the opinion the same force and effect as belong to the opinions of the Attorney Generals." This provision is embraced in substantially the same language in section 358 of the Revised Statutes. Evidently, therefore, Congress contemplates that the official opinions signed or indorsed in writing by the Attorney General shall have some actual and practical force. Congress' intention can not be doubted that administrative officers should regard them as law until withdrawn by the Attorney General or over-ruled by the courts, thus confirming the view which generally prevailed, though sometimes hestitatingly expressed, previous to the establishment of the Department of justice. (3 Opin., 97; 6 Opin., 334; 7 Opin., 699, 700; 9 Opin., 35, 37.)
The question now presented is substantially the same as that presented last summer. The duty of this department ended with the rendition of the opinion, and it can not with propriety advise further. (17 opin., 332.)
Mr. Attorney General Gregory Was correct in saying that if the authorities in the Canal Zone believe that the relator in the present case owed any amounts of money whatsoever to 'The Panama Canal it was- "a question for judicial rather than administrative determination," and that the claim now urged by the respondent in this case couldd only be enforced through proceedings, in the courts." That is a sententious and felicitous statement of, this case. Judge Jackson has never had his day in court. He has been deprived of his salary, or the sum of $1,131.76, without due process of law. It has been withheld from him by the refusal of the auditor in this case to issue his voucher upon which the salary is paid. The indebtedness is denied by judge Jackson. He denies it upon the grounds that there was no law or regulation under which the indebtedness was or could have been created. He denies that the respondent has authority to withhold any part of his pay in the collection of an alleged but disputed indebtedness. And yet the executive officer has sat as a court and without evidence or hearing, except what he considers a hearing, decided a controversy that he created by his own action. He has passed upon a disputed claim which is a disputed claim merely because he has created the dispute in refusing to make payment where it was his plain duty to make such payment. His conduct, however good his intention may have been, hardly falls short of being shocking to the judicial sense of justice, proper and orderly procedure, in a matter that is