|Table of Contents|
Front Cover 1
Front Cover 2
Table of Contents
Opening statement of Chairman Allen
Witnesses, statement, and material submitted for the record
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Back Cover 2
PANAMA CANAL TREATY (DISPOSITION OF UNITED STATES TERRITORY)
SUBCOMMITTEE ON SEPARATION OF POWERS
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
SECOND SESSION PART 4
MARCH 11, 1978
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
24-681 0 WASHINGTON : 1978
For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402
COMMITTEE ON THE JUDICIARY JAMES 0. EASTLAND, Mississippi, Chairman
EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina
BIRCH BAYH, Indiana CHARLES McC. MATHIAS, JR., Maryland
ROBERT C. BYRD, West Virginia WILLIAM L. SCOTT, Virginia
JAMES ABOUREZK, South Dakota PAUL LAXALT, Nevada
JAMES B. ALLEN, Alabama ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, JR., Delaware MALCOLM WALLOP, Wyoming
JOHN C. CULVER, Iowa HOWARD M. METZENBAUM, Ohio DENNIS DECONCINI, Arizona PAUL G. HATFIELD, Montana
FRANCIS C. ROSENBERGER, Chief Counsel and Staff Director
SUBCOMMITTEE ON SEPARATION OF POWERS JAMES B. ALLEN, Alabama, Chairman ROBERT C. BYRD, West Virginia ORRIN G. HATCH, Utah
JAMES 0. EASTLAND, Mississippi WILLIAM L. SCOTT, Virginia
QUENTIN CROMMELIN, Jr., Chief Counsel and Staff Director Dr. JAMES MCCLELLAN, Minority Counsel PAUL GULLER, Editorial Director MELINDA CAMPBELL, Chief Clerk ANN SAUER, Assistant Clerk DEIRDRE HOUCHINS, Research Assistant
SATURDAY, MARCH 11, 1978
McClellan, Doris, clerk of the U.S. District Court for the Panama Canal Page
Luitweiler, James C., Secretary of the Joint United States-Republic of Panama Land Commission ----------------------------------------- 9
Helms, Hon. Jesse, a U.S. Senator from the State of North Carolina--------MATERIAL SUBMITTED FOP. THE RECORD
Final Report of the Joint Commission appointed by the President of the
United States of America and the President of the Republic of Panama, under the provisions of articles VI and XV of the treaty ratified February 26, 1904---------------------------------------------------- 17
Provisional Boundary Agreement (Davis-Arias Agreement) Informal provisional delimitation of the boundaries of the Canal Zone, 1904 ---------125 Staff report regarding property records in the custody of the U. S. District
Court for the District of the Canal Zone------------------------------ 129"
Representative sample of types of instruments of conveyance by which
the United States, as grantee, purchased proprietary land rights in the
Canal Zone------------------------------------------------------ 13 5
Act of Congress authorizing land conveyance to Mlasonic Lodge ----------145 Historical summary of Panama Canal Company ------------------------ 147
Digitized by the Internet Archive
PANAMA CANAL TREATY
(DISPOSITION OF UNITED STATES TERRITORY)
SATURDAY, MARCH 11, 1978
SUBCOirMITTEE ON SEPARATION OF POWERS,
COMMITTEE ON THE JUDICIARY,
The subcommittee met, pursuant to notice, at 10:15 a.m., in room 1318, D)irksen Senate Office Building, lion. James B. Allen of Alabama (chairman of the subcommittee), presiding.
Present: Senator Orrin G. Hatch of Utah.
Also present: Senator Jesse Helms of North Carolina.
Staff present: Quentin Crommelin, Jr., chief counsel and staff director; Paul Guller, editorial director; and Deirdre Houchins, research assistant.
OPENING STATEMENT OF CHAIRMAN ALLEN
Senator ALLEN. The Subcommittee on Separation of Powers of the Committee on the Judiciary is convened today for the purpose of receiving the testimony of Doris McClellan, clerk of the U.S. court for the Panama Canal Zone, and of James C. Luitweiler, formerly Secretary of the Joint United States-Republic of Panama Land Conmmission. The committee is convened for the further purpose of act ing on the staff draft of the report of the subcommittee on the Canal Zone property disposal issue, the main focus of the committee's work during the past 8 months.
As has been constantly emphasized for some time now during the Canal Treaty debate, the Constitution does very plainly require that Congress authorize any disposal of property belonging to the United States. Specifically, article IV, section 3, clause 2, of the Constitution states as follows: "Congress shall have the power to dispose of * the territory or other property belonging to the [United States." The requirements of this constitutional provision do not have anything whatsoever to do with whether or not the I'nited States is sovereign within the Canal Zone or even whether the Canal Zone is unincorporated territory of the United States as the Federal courts have consistently held. The issue is simply whether the IUnitedl States owns property in Panama. If property is owned by thle l nllited States, then no disposal of such property to PIanama can occur without the exlIt-ss prior authorization of the Congress, including the llouse of Representatives.
Earlier this morning one of the representatives of the radio networks asked me if this was a last ditch effort to defeat the Panama Canal Treaties. I told the person no, that the committee has been investigating this point of constitutional law for the last 8 months. We have the records of the hearings in three books and a committee report as well.
I am glad tath ndatlong last, is taking note of this importantc constitutional provision.
Not only has the Senate Subcommittee on the Separation of Powers of the Judjiciary Committee been going into, this point, but also on the House. side one of those committees has been investigating this point. It is happening not only in this Congress but happened in the last Congress. So it is not a new issue. it is a most important issue as to whether the H-ouse of Representatives will be allowed to participate in and to vote on the disposition of property of the United States in Panama.
The testimony which we will receive today and documentary evidence which the subcommittee will examine should lay to rest forever the idle and ill-informed recent assertions that the United States merely rents its property in Panama. Nothing could be further from the truth.
Several able Senators in debate on the floor of the Senate, who should have known better, have stated that the United States does not own the property in the Panama. Canal Zone but merely rents the property. Well, we would like to disabuse them about that misconception of the facts.
Not only is the Panama. Canal Zone unincorporated territory of our country, but additionally-and this is sufficient to trigger the requirements of the Constitution-the actual fee simple title to a major part of the lands in the Canal Zone has directly vested in the United States by purchase. That would be information to a number of Senators who have p~articipated in the debate on the floor of the U.S. Senate.
FEE SIMPLE TITLE~ TO 31.5 98 TRACTS OF LAND)
In other words, not only does the United States possess the C'anal Zone ais owner of the. territory, but additionally, the fee siniple title to the land itself has become public property as a result of our Governnient's decision to buy uip all private land holdings in the Canal Zone.
These putrchas-es of private land rights occurred firing the period 19015 through 1920, and by the (late of the final report of the Joint Land Commission on Mlarceh 10. 1920., title to all former private land holdings in the Panama, (",anal Zone. had vested exclusively in the United States.
In obtaining its title, the United States dealt with the owners of some 3,598 tracts of land and did ultimately obtain full fee simple title to all lands in the Canal Zone previously held by these Panamlanians or other private. landowners. I might state that in the Treaty* of 1903 this land p~urchase commission was set up for the expressed purpose of allowing the United States to purchase the land in Panama in the Canal Zone owned by private owners. These( purchases were made at a cost of at lep 458,8 zd1ossily more.
Although the activities of the Joint Land Commission are obviously a matter of record, the committee has nevertheless been greatly con-
cerned and, indeed, alarmed that many otherwise responsible Government officials seem to be under false impression that the United States does not hold title to these lands in the zone. For that reason, the committee hopes that the testimony we are to receive today will establish beyond a shadow of a doubt the fact that the United States does own property in Panama and that Congress, therefore, must authorize any transfer of these public lands to any foreign government or, indeed, to any entity not part of the Government of the United States.
In other words, the United States owns the fee simple title, and we have three cartons containing the records and the original recorded deeds to this property. I think this will lay the matter to rest.
This is public property belonging to all of the people of the United States, and it cannot be legally given away except under authority of the whole Congress representing all of the people of the United States. It takes a statute enacted by both Houses of Congress. The Congress and the people bought the land; only the Congress and the people can give it away.
HISTORICAL SPECULATION NOT NECESSARY
This principle of public property disposal is a matter of record, yet there is a peculiar tendency of late to ignore the record and to ignore the true facts of the history of the actions of the United States in Panama. These revisionist historians-both in and out of governminent-are handicapped by one significant fact. That fact is that many of the people involved in this great national undertaking some 60 to 70 years past are still alive and possess memories unimpaired by the dream world inhabited by many modern commentators.
Mr. J. C. Luitweiler has been, I am confident, bemused and possibly annoyed by current accounts of the nature of the United States' activities in Panama during the early days of the construction and operation of the canal. Mr. Luitweiler went to Panama as a young iman in February 1913, 65 years ago. He set sail with Dr. Rowe and Dr. Faulkner, both of whom had been appointed by President Wilson as American Commissioners on the Joint Land Commission. The two Panamanian Commissioners appointed by the President of Panama met Mr. Luitweiler and the two American Commissioners on their arrival in Panama, and the Joint Commission soon thereafter began its work in purchasing private lands in the zone.
This does not seem like a reluctant Panama helping to purchase this property. It seems they gave their full permission and certainly they ratified in every possible way the bona ides of the 1903 treaty.
The particular Commission on which Mr. Luitweiler served was one of several Coiniissions appointed during the period 1905 through 1920, b)ut the work of this particularI Land Commission was excepl)tionally significant inasmuch as it was carrying out the instructions of President Wilson that all Iremaining private lands in the zone should )be acquired by the 'nited States. Mr. Luitweiler has a wealth of informatioln for t1e colitlltee, and we re 11indeed fortillite to ha1ve his testimony, b1)oth for thie inmediate l)uI)ose of settillng thle record straight
and for the larger purpose of preserving for history Mr. Luitweiler's experiences in Panama with Colonel Goethals, now "General ;" Colonel Gorgas, now "General;" and the other great Americans who saw this great national adventure in Panama through to a successful conclusion.
General Gorgas was a great Alabamian who was able to eliminate the yellow fever there. Without his contribution I feel that the canal would never have been built. That was one of the factors involved in the French failure to build a canal several decades before that.
The committee is also deeply honored to have an opportunity to receive the testimony of Doris McClellan, who is clerk of the U.S. district court in the Canal Zone but who is also the daughter of Senator John McClellan, who is greatly missed by the Senate and the country and who was to me a friend and a guiding example. We will hear from Miss McClellan, I am sure, that she is and has been custodian of the records of the land purchases by the United States in Panama and that under her safekeeping and custody these deeds and other records have been preserved and they are here this morning for the observance of the subcommittee and as a matter of record, in order to show without doubt the ownership by the United States of the property in the Panama Canal Zone by actual purchase.
Miss McClellan is here to authenticate documents sent to the subcommittee by order of the U.S. district court. These documents are present in the sealed chestsg before us. The committee is advised that these documents do establish the title of the United States to th e real property in the Canal Zone which was purchased by the actions of the Joint Land Commission on which Mr. Luitweiler served. Very likely many of the documents upon which Mr. Luitweiler himself worked some 65 years ago are here in these chests.
At the direction of the court, the subcommittee will open the chests and examine the records. As clerk of the court, Miss McClellan will certify the authenticity of the documents, and a representative sample will be received in the form of authenticated copies for inclusion in the record of this proceeding.
I might also suggest that a portion of these deeds be inserted in the Congressional Record as typical of the deeds of which there are several thousand that are in possession of the court showing ownership by the United States of land in the Canal Zone.
Thereafter the documents will be returned to the custody of the administrator of the 17.8. court, and they have been in his custody under the direction of Miss McClellan, and inasmuch as they have now been mnicrofilmed, I understand they will eventually be retired to the National Archives and the microfilm itself will bear witness to the title of the United States. For that reason the committee also has present a microfilm reader-printer so that again a representative sample of the microfilm record can be secured by the committee, authenticated by Miss McClellan, and included in the record of these proceedings.
'We are delighted to have you, Miss McClellan and Mr. Luitweiler, to appear before our committee to give us the benefit of your knowledge as to the acquisition by the United States of property in the Panama Canal Zone.
Miss McClellan, we are delighted to have you here. I might ask that you state your name and your present position with the U.S. Government.
TESTIMONY OF DORIS McCLFLLAN, CLERK OF THE U.S. DISTRICT
COURT FOR THE PANAMA CANAL ZONE
Miss MCCLELLAN. I am Doris L. McClellan. I am clerk of the U.S. district court for the Canal Zone.
Senator ALLEN. We see on the table before us three large wooden chests. I wish you would explain to the committee just what these chests are and what is in the chests, and then we will actually remove the contents in a moment.
Tell us, if you will, how they came to be here in the U.S. Senate subcommittee hearing.
Miss MCCLELLAN. The chests that you see here in front of you today hold the original records of the U.S. district court where the United States purchased the land from Panama, beginning with the year 1903. These three crates go up through 1914. There are many more boxes similar to these, but these were the very first three and these were the very first records.
Senator ALLEN. When did you send these original records up here to Washington? Why did you do that?
Miss MCCLELLAN. Because there were so many problems with the two countries down there, and you never know from day to day whether there is going to be a riot or what is going to happen. My court is right on the border and my records were not being properly cared for. I thought these records would be valuable someday to someone who would want to prove that we did buy the land. So I put a microfilm unit in my office and I started microfilming all of my records. That was in 1975 when I started.
These crates, including the ones you see here, I decided they were so important that I did not want them to go to the National Archives in Suitland, Md.. where the rest of our records are. I decided that I would ask the Administrative Office of the U.S. Courts if I could let the crates stay there. With the hearings coming up and everything, I wondered if maybe some of the members of the subcommittee might want to see them to get proof that we actually bought the land.
Senator ALLE.\. How long have you been clerk of the district court ?
Miss MCCLELLAN. I was appointed clerk in 1971, but I served 2 years as deputy clerk prior to that.
Senator ALLEN. As clerk of the district court for the Panama Canal Zone was it a part of your duties and responsibilities to have custody of the original documents relating to the purchase by the United States of land in what is now the Panama Canal Zone?
Miss MCCLELLAN. That is correct. I acquired those records when I became clerk of the court. Then it was my job to take care of them.
Senator ALLEN. Has there been any acquisition of property by the United States during your term of office as clerk ? Miss MCCLELLAN. No, sir.
Senator ALLEN. All of this was closed out many years ago? Miss MCCLELAN. Yes.
Senator ALLEN. IWhere were the records kept there in the court in Panama?
Miss MCCLELLAN. They were not in my court per se but they were' in the building about six blocks from where my court is. It was a building with a tin roof on it where the air could get into it. I just felt that that was not a proper place to keep them.
In the meantime, I leased a building called a chalet on a military base for safe keeping of my records. I transferred all of my records from the wooden building with the tin roof up to that other place. They now are in the chalet.
However, most of my records with the exception of certain critical records from 1903 up to 1965 are now in Suitland, Md., in the Archives. They are stored out there. These three boxes have been microfilmed and will eventually go out to the Archives.
Senator ALLEN. Do you think this is a complete set of the deeds?
Miss, MCCLELLAN. Oh, yes., it is, sir.
You are welcome to open them and look at them, hold them in your hand, or whatever you would like to do.
Senator ALLEN. You felt through your method of storage of the documents, that they were not getting proper care from the standpoint of the elements and possible damage. to the documents themselves. "is that right?
Miss MCCLELLAN. That is correct.
Senator ALLEN. For that reason, plus the fact that you figured for their safety from other points of view, you felt it Well in 1975 to send the documents up here to the Administrative Office of the United States Courts. Is that right?
Miss MCCLELLAN. That is right.
Senator ALLEN. They have been. there subject to your order, however. Is that correct?
Miss MCCLELLAN. That is correct.
Senator ALLEN. Now, I think it might be well 'at this time if we would ask the officers, if they would, to come around and help us get these documents. We will ask you to take all the documents out of one of the boxes. We will then see if we want to go ahead with'the other boxes as well.
Are there steel boxes under the wooden f rames?
Miss MCCLELLAN. No; they are wrapped in plastic.
Senator ALLEN. What is the approximate size of these three chests?
Miss MCCLELLAN. Sir, I could not really tell you that.
[Police officers open imp crates.]
Senator ALLEN. If you would, officer, take them out and put them in front of the boxes.
[Material removed from crates in form of large leather-bound books.]
Senator ALLEN. All of these have been microfilmed. Over here on the microfilm machine each One of the deeds has been recorded? ta
Miss MCCLELLAN. Yes, sir. Those are our official records now, ta is, the microfilm, because these other books are so old.
Senator ALLEN. I wonder if we might see some of the microfilm prints.
[ Senator examines books and microfilm.]I
Senator ALLEN. What we have here on microfilm tape is a permnanent record of the original deed, as I understand it.
[Senators examine microfilm.]
[One book opened from under plastic cover and examined by Senators.]
Senator ALILEN. I see it is recorded in English and Spanish.
Miss McCLELLAN. That is correct.
Senator ALLEN. Do you know how many deeds are contained here?
Miss MCCLELLAN. NO, sir, I have not researched that.
Senator ALLEN. Contained here is the record of all the deeds showing purchase by the United States.
I see that these show purchases from private owners in Panama in the Canal Zone. I see that in some instances they may have bought and paid for them several times.
This was quite a job to put all this on microfilm, wasn't it?
Miss McCLELLAN. Yes, it was,
Senator ALLEN. This will then preserve the original record for posterity. Is that right ?.
Miss McCLELLAN. Yes.
Senator ALLEN. Where is the original record?
Miss McCLELLAN. It is in the Administrative Office of the Courts.
Senator ALLEN. It was our purpose, as I understand it, under the direction of President Wilson to purchase all of the private property there.
Miss McCLELLAN. I have a list of all the names of the people connected with these transactions.
Senator Allen, I did not bring the original copy of this but this is the list of persons and what I would call the final report for you [indicating].
Senator ALLEN. Thank you.
You will be able to leave that with us?
Miss McCLELLAN. Yes, that will be fine.
Senator ALLEN. This has listed here on several dozen pages the amount claimed and the amount paid. There are literally hundreds of these. You actually give the names of the Panamanians who own property? Is that correct?
Miss MCCLELLAN. Yes.
Senator ALLEN. I am glad to have this for the record.
[General discussion held among the members of the media, the Senators, Mr. Luitweiler, Ms. McClellan, and the audience.]
Senator ALLEN. We have asked Mr. Luitweiler to come to the witness table also.
The distinguished Senator from North Carolina. Mr. Helmns, who is the Senator from Mr. Luitweiler's home State. is here to present Mr. Luitweiler.
Senator Helms, please proceed.
STATEMENT OF HON. JESSE HELMS, A U.S. SENATOR FROM THE
STATE OF NORTH CAROLINA
Senator HELrs. Thank you, Mr. Chairman.
First of all. I want to commend you on your opening statement. As has been the case throughout the decision and debate on the treaties, the debate has certainly been capably led by the Senator from Alabama. He has supplied an iumnense amount of coIIIIuonIsense to the debate.
I have often thought, Mr. Chairman, that the Lord gave both the United States and me a good constitution. It is up to us not to abuse them. I am often fearful of the abuse of the U.S. Constitution.
In connection with your comment about the disposition of U.S. property, I believe the record should show that more than half of the Members of the House of Representatives-231 Members in f act-have cosponsored a House resolution expressing the conviction that Congress, both the House and the Senate, must act on the disposal of the Canal Zone. This clearly is a warning to the Senate; it may even be a red flag that, if the House of Representatives -is ignored in this matter, then the House of Representatives may indeed find it difficult to facilitate the implementating legislation which will be required by the treaties if the Senate should make the mistake of approving them.
Now, as to this distinguished citizen from our State, Mr. Chairman, over the last year or so, Members of the Senate have been called upon to do a tremendous amount of readin g and research to f amil iarize ourselves with the historical and technical data that we need at our fingertips in order to participate in the great debate on the Canal Treaties.
I do not know one Senator who has not been sent back to the -history books by this tumultuous issue; and judging from the people I talk to, it has prompted many other Americans to do the same. I myself have had the good fortune to talk to many experts in the maintenance 'and defense of the canal. Not too many months ago I went to the Canal Zone to talk to the people who live there and to many Panamanian citizens.
So I have had a rather thorough education in the matters affecting the canal. I am glad I have had it.
But one of the greatest contributors to my education, I might say, has been a series of letters I have received from an extraordinary gentleman who is -with us this morning, Mr. J. C. Luitweiler. Mr. Luitweiler first wrote to me after seeing a "Meet, the Press" broadcast on the Canal Treaties, in which I was participating.
-Since that time, I think it is only fair to -attribute a great deal of what I know about the history of the Panama Canal to a "correspondence course" with Mr. J. C. Luitweiler, of Tryon, N.C.
Disturbed by what he was hearing about our acquisition of the Canal Zone, Mr. Luitweiler took to his typewriter to set the record straight. I believe the testimony here today will demonstrate that no one could be more qualified to do so than he.
Mr. Luit-weiler, now 88 years of age, is what the historians would refer to as a "primary source." To put it bluntly, that means he knows what he is talking about because. he served as the se cretary of the JToint Land Commission by means of which property owners in the Canal Zone were compensated.
Mr. Chairman, he was appointed to this post by two American and two Panamanian members of the Commission, and it is he who signed the many orders of payments for the claims presented by the property owners, many of whom did not hold titles in the Anglo-Saxon meaning of the term.
Mr. Luitweil-er can singlehandedly refute the rather sophomoric allegations of those in the Senate and elsewhere who continue to claim that we somehow "stole" the Canal Zone. Mr. Luitweiler can refute this with incontestable -facts.
He can speak about such people as Colonel Goethals and William Crawford Gorgas from personal reminiscence. He was on the scene
when the Canal Zone was transformed from a pestilential swamp to
the greatest manmnade waterway in the world.
It is my pleasure to present my fellow North Carolinian, Mr. Luitweiler.
Senator ALLEN. Thank you, Senator Helms. We greatly appreciate that fine introduction.
Mr. Luitweiler, I think for the benefit of the committee and the record you might explain just what your connection was, and what years you had that connection, regarding the purchase for the United States of America of land comprised of the Panama Canal Zone.
TESTIMONY OF JAMES C. LUITWEILER, SECRETARY OF THE JOINT
UNITED STATES-REPUBLIC OF PANAMA LAND COMMISSION
Mr. LUITWEILER. If you look at a copy of the treaty which was sent to me, you will find article VI and article XV on which the Joint Commission operated.
Senator ALLEN. Yes, I have both right here.
Mr. LUITWEILER. You will find in article VI that the Commission was appointed of two Panamanians and two Americans who would evaluate whatever property was taken for the construction, the maintenance, the operation, the sanitation, or the defense of the canal.
At the end of 1913, Colonel Gorgas, for reasons best known to him. decided that the whole Canal Zone was necessary for that purpose. not just a piece of it but all of it. So he asked President Wilson to declare that the United States would expropriate the entire Canal Zone and everything on it for the benefit of the United States.
He sent down two Comnmissioners, Dr. Rowe and Dr. Faulkner. I went along as a secretary. On the way down I was told that I was too young for the job but if I would grow a mustache I might be appointed Secretary of the Commission. That is why I have the mustache here today. That is a 65-year-old imustache. It is worth $100 a month to me.
Senator ALLEN. To put a little age on you so that you could qualify for the higher position?
Mr. LUITWEILER. I was 23 then and I looked like a kid. With a mustache I looked 10 years older.
Senator ALLEX. It is not necessary now to establish your age to have the mustache, is it ?
Mr. LUITWEILER. If I shaved it off, I would not look any younger. [Laughter.]
Senator ALLEN. I see.
Mr. LUITWEILER. Anyhow, we got down to Panama and we met two Panamanians, Dr. Boyd and Dr. Lewis. They spoke Spanish and English. Our Commissioners and I spoke English and Spanish also. Within 24 hours it was agreed that I should serve as the Secretary to the Joint Commission.
I think another thing happened that is good for the record. Senator ALLE-N. This is what year? Mr. LUITWEILER. 1913.
General Gorgas had beautiful quarters set up for us on the Canal Zone. HIe said, "I want the Commission under my thumb." He said that to other people, too.
The Americans said that they would have to confer with Panamanians about that. We went to Panama, and the President of Panama showed us the palace. He said we could use it for the meetings if we liked. It was beautiful, like a judge's chambers.
So he treated us handsomely. He wanted to do everything he could to make us welcome because the President of Panama was all for taking over the Canal Zone bv the United States and for paying for the property that was owned there.
Senator ALI,EN. IHad the canal opened at that time?
Mr. LuITWEILER. No, not until the end of 1914. This was preparation for the opening of the canal.
After that constitution of the Commission, they appeared in public session. Judge Faye, General Counsel for the Panamanian-Canal Commission, testified before the Commission that in his opinion all the thousands of Panamanians, Negroes from the Caribbean Islands, and so on doing work on the canal were there as squatters. They had no title. American law said you had to be 20 years or 30 years before you can acquire title to land that you squatted on.
That matter became the subject of discussion at the first meeting of the Joint Commission in the judge's chambers. I sat in there about a month. The Panamanians brought in a lot to demonstrate the civil law. They said these were the laws that applied. They said that people were squad tting on the land and they said that these people were entitled to be treated under Panamanian law.
Senator ALLEN. You went by the civil law of Panama in paving compensation for the land, did you not?
Mr. LuiTWEILER. The civil law of Panama provided that anybody who squattered on land even for 24 hours, if he was kicked off, he was entitled to be paid for his improvements.
Senator ALLEN. You respected that law in making your acquisition?
Mr. LUITWEILER. This is an aside. There was quite an argument which went on regarding this subject. Dr. Rowe said. "If we accept Dr. Fave's principle and kick all these people out without paying a cent, we will have a black eye."
Senator ALLEN. You didn't follow that?
Mr. LjUITWEILER. We didn't. We decided on the contrary, which followed the Panamanians' idea of the Spanish law applying.
Since there were tens of thousands of pieces of claims, the Commission decided it could not hear each and ever individual claim. Instead of that, they set up a yardstick. There would be so much. $50, for every hut which was planted with banana trees; there would be $50 for a man and his wife; if he had children, there would be $50 for every child.
DOUBLE PAYMENT FOR PANAMAIANS
Senator ALLEN. When you ascertained how much the Panamanians in possession of the property were entitled to, you doubled that, did von not?
Mfr. LUITWEILER. That is right. If a man was a Panamanian citizen, it was doubled.
Dr. Rowe and Dr. Faulkner had the view that these people were being kicked out of their land. They said, "If we follow Judge Faye's principle, this would be a black eye."
You remember when the English kicked the French out of Canada, they had that situation. They did not want that on our conscience. They wanted the Panamanians to be satisfied.
When it was published in the newspaper that the award was going to be on the Spanish law-and they actually set out the way it was to be done-the Panamanian citizens and the government and everybody acclaimed it. The only people who objected was General Gorgas because he thought it was going to add to the cost of the canal. Paying these individual claimants would probably cost $150,000 or $200,000. This was a drop in the bucket compared to the cost of the canal.
Senator ALLEN. You paid not only for the land, but you paid for the improvements that you found on the land. Is that right? Mr. LuITWEILER. Yes. In addition, we paid for consideration of the fact they had been evicted from their homes.
Senator ALLEN. The Commission was charged with the duty and the responsibility of buying all the land in the Panama Canal Zone. Is that right ?
Mr. LUTWETLER. That is right.
Senator ALLEN. They made a good faith effort to do that. Is that right?
AWARDS PAID WITHIN 24 HOURS
Mr. LITWEILER. Yes; and it could be said to Colonel Gorgas' credit that none of the awards that were paid were turned down. They were paid within 24 hours. So the U.S. Government did its part in playing religiously every claim if the award was made.
Senator ALLEN. Did the Commission in your judgment buy all of the property in the Panama Canal Zone for the United States of America? Did the CommissiGn purchase from private owners all of the land in the Panama Canal Zone for the United States of America ? Mr. LUITWEILER. As far as I know. they did because at the endSenator ALLExN. The Commission was open for anyone to come in to present a claim for property. Is that right? Mr. LUITWEILER. Yes. Unfortunately, I had a bad case of malaria at the end of 1914 and I was an invalid.
Dr. Rowe and Dr. Faulkner were replaced by two other American Commissioners. That went on for a couple of yea rs.
Senator ALLEN. By the way, this was rather a Strge COmiSSIO.
You had two Pa.namanians and two Americans. That is not usually the case. If they could not agree, I believe the two governments would appolAint a referee or an umpire.
Mr. LUITWEILER. Yes, an umpire.
Senator ALLEN. That's an unusual Commission.
Were there many instances of having to get an umpire or did the Panamanian Commnissioners and the American Commissioners generally see eve to eve?
Mr. LUITWEILER. They agreed pretty well while I was there. But when flthey were replaced by two more Commissioners, the fat was in the fire. They didn't agree at all.
Senator ALLEN. Then they had to appoint an umpire?
Mr. LuITWETLER. Yes. He happened to be a Spanish general or admiral who had been wounded in the Spanish-American War. Obviously you can figure what, happened to the claims. Panama got, a very good deal.
Senator ALLEN. Did the Commission have maps of the Panamar Canal Zone, land mass? Did you have maps to go by?
Mr. LuITWETLER. You have to picture the Canal Zone I saw in those days. It was 500 square miles of land. There were a few squatters here and there. After the Commission had gotten itself settled dowNNn, they made many excursions throughout the Canal Zone taking testimony of individuals. They would take individual testimony. They would move to another place and so on. They scattered all over..
CANAL ZONE A SWAMP
They did not plot out a piece of land on a map. It was not. plotted that way. The Canal Zone was almost a swamp when Gorgas came there.
Senator ALLEN. The Government of Panama by the appointment of these Commissioners, acting under the treaty, seemed anxious to have the United States buy this property, were they not?
Mr. LuITWETLER. If you go back to the original treatySenator ALLEN. I am not talking about the treaty. I know what the treaty says. At the time you were working down there, did not the Panamanian Government seem anxious to cooperate with the United States in buying this property?
Mr. LuITWEILER. Yes, but we did not buy anything from the Panamanian Government.
Senator ALLEN. Yes; I know that, but from the private owners. They encouraged the landowners to sell, did they not?
Mr. LTJITWEILER. They were delighted. Their claims were far in excess of what the Panamanians even thought was correct. Many of the claims that we heard in our session said that the Panamanians themselves said it was ridiculous.
For instance, there was a big cocoa plantation where they raised cocoa. It -had been there for 10 years. -They wanted to be paid for what the cocoa plant would be worth in the next 20 years. The Commission turned that down.
But the big thing was, from my point of view', the individual Panamanian landowner. I cannot remember any dissent at all by an individual landowner.
TREMENDOUS INCREASE IN LAND VALUES
Senator ALLEN. I know there is an interesting phrase in the 1903 Treaty that the payment for the land or damages would be based upon a valuation before. the -signing of the treaty. That indicates in our mind-and I would like for you to verify this or say it is not correctthat the coming of the canal, greatly increased land values in Panama. Is that not right?
Mr. LUITWETLER. I don't think the American Commissioners paid attention to that clause.
Senator ALLEN. I understand that. but is that not a fact that this coming of the canal raised land values?
Mr. LUITWEILER. Yes; tremendously.
Senator ALLEN. It was not a disservice then to the Panamanians.
Mr. LUITWEILER. That was a yardstick for the valuation of the land.
Senator ALLEN. Let me ask you this. I have never had the pleasure of meeting you before this morning, Mr. Luitweiler. I have not sought to prompt you in any way.
Did the Commission buy any land which was the route of the canal itself? Did you purchase landMr. LUITWETLER. No. The Commission had nothing to do as to where the United States took the land from Panama for the canal. The Commission had nothing to do with that. If you read article XV you will see that their idea was to pay for the property owners whose land was taken in damage. That's what they did. There never was the United States and Panama before the Commission as a court.
Senator ALLEN. The route of the canal was filled up with the water. Was it full at the time you went to the Canal Zone? Had the water filled up that area where the Canal Zone was? Some of it was still without water; right?
Mr. LUITWEILER. I was there at the opening of the canal.
Senator ALLEN. But when you first got there was the canal in being; whether it was open or not?
Mr. LUITWEILER. The canal was in being; yes. I think in August 1914, it opened.
Senator ALLEN. Then what the particular Commission on which you served did was to buy the land from the bank of the canal outright. Is that right?
Mr. LUITWEILER. That is right.
Senator ALLEN. The other Commissions established before the particular commission on which you served may presumably have bought out private land holders along the route of the canal but your Commission did not buy the land where the canal actually went because the canal was already there and in any event that was covered by the 1903 treaty. Is that right?
Mr. LuITwFIEIR. That is right.
If you read the 1903 treaty, you will find 5 miles on either side of the canal was granted to the United States. They did not have to buy that land from Panama because they paid $10 million for that land at that time and $250,000 a year.
I know a lot of people contend that we do not own the land because we were a leaseholder. But if you buy a leasehold in perpetuity, I do not see any difference.
Senator ALLEN. Miss McClellan, I would like for the record to show this. I would like for you to identify several representative deeds and certify such records. Also, I would like for you to identify the corresponding portion of the microfilm which has been develop for the comlinittee's records. You don't have to do it now but, when we receSS we would like for you to do it.
Without objection, the representative copies of the deed records and representative copies of the corresponding microfilm developed will be inserted in the record at this point.
I ask also that we put into the record representative sheets from the joint report. It would be so volummious, so we will not include that, but ask that there be representative sheets picked out for filing in the
committee report and to state the exact number of claimants and sellers of property for the record. However, the matter has been called into question and, therefore, perhaps the entire report should go into the record so that the issue will not again be raised in error.
Senator Helms, would you like to ask a couple of questions?
Senator HELMS. Thank you very much. I would like to ask two or three, Mr. Chairman.
Mr. Luitweiler, what you have said here is that the United States had the sovereign right to exercise eminent domain and that sovereign right came down from the 1903 Treaty. Is that right?
Mr. LIJITWEILER. Yes. That was not disputed at all. The Panamanians and Americans recognized that we had sovereign rights to the Canal Zone, rights as if we owned the canal.
Senator HELMS. There was no dispute about it?
Mr. LuITWEILER. No dispute whatsoever about that.
Senator HELMS. Did any property owner claim he had been underpaid for his property?
Mr. LUITWEILER. No. Everybody, including the press, acknowledged that everybody was being overpaid.
Senator HELTNIS. So the newspaper records of that day will show that not only were the property owners satisfied, they were delighted with what they were paid?
Mr. LLTJTWEILER. I think if you get the Panama Star and Herald of that day you will find that they were laudatory toward the work of the Commission.
Senator HELMS. As a man who was on the scene and participating in these events in the early part of the century, what do you say now to those in the Senate and elsewhere who claim, that the United States stole this property?
Mr. LuinV~EILER. Do you want to get me stirred up? [Laughter.] I really want to have at least 15 minutes to tell what I think. r[Laughter.]
I think Teddy Roosevelt did a wonderful job in getting the canal land from Panama and not creating a problem with Panama, but in getting Colonel Gorgas down to the Canal Zone and making the Canal Zone a fit place for Americans to work and live.
What worries me most about the present situation is thatMr. Torrijos, of course, has entertained people in the daytime, but Gorgas made the Canal Zone a healthy zone, probably the most healthy place in the tropics for Americans to live and work.
Senator HELMS. For everybody to live and work, Panamanians as well as others. Is that correct?
REASON FOR "LUXURY 11 LIVING
Mr. LtTiTwEILER. That is what the Panamanians claim. Right across the border they lived in squalor while Americans lived in luxury. TPhat was all because Mr. Gorgas decreed that every American down there should live in a, screened-in barracks. Every American who lived in a home with his family should live in a screened-in home. with a well -kept lawn.
Of course, you know mosquitoes breed in mudholes and lie was against that.
You have to live in the tropics for many years to realize what it is to be there and to be subject to the things that the tropics have. You don't experience that up here.
I lived in Yucatan for 5 years before I went down to Panama. That was another jungle. I know what it is to live in a jungle and ride horseback through the jungle and have Indians cut your way through the jungle.
Some of the Commissioners went out in the jungle to take testimony. We had a group of a half a dozen Indians with machetes chopping our way through the jungle. We don't have any jungle in the United States to compare with the jungle in a tropical country.
Of course, in Panama it is worse than ever. A jungle will creep back and take over within a month or two.
One of the things I am very fearful of is that when the treaty is. passed, within 2 months the boundaries between the Canal Zone and Panama will come down and the Panamanians will move in there.
The Panamanians are not so fearful as we are of malaria because to Panamanians malaria is what a common cold is to us. They get a chill and fever and that is it. To us it can kill us.
In my opinions, as soon as the border between the zone and Panama comes down, the jungle will creep back in and the American technicians who are still responsible for the Canal Zone will leave the Canal Zone. I do not give that canal more than 2 years of life once the Canal Zone is turned over to Panama.
Senator ALLEN. Thank you.
Miss McClellan, these records here are the records of the purchases of the United States from the Panamanians who had property in the Canal Zone. Is that right?
Miss MCCLELLAN. That is right.
Senator ALLEN. Is the final report of the Land CommissionI the final report of all the purchases or is that the last report following a series of monthly reports?
Miss McCLELIAx. That is the last report.
Senator ALLEN. Is that cumulative or not? )oes it just represent the last purchases or does it represent all the purchases?
Miss McCLELLAN. I thought it represented all the purchases.
Senator ALLENx. In other words, it would he cumulative?
Miss MCCLELLANx. That is right.
Senator ALLEx. I will ask permission that the chairman, if he sees fit, may order the full final report inserted in the record. or else, as I suggested earlier, may order the staff (director to get re-esenltative pages for inclusion in the record. I would like to have authority to insert the whole report in the record since it is so im)ortant together with representative deeds and perhaps the Bomundlary (C'onvent ion ()of 1914.
Is there objection to the chairman's taking that action ?
["No response. 1
Senator A.LLEN. Iearing no oliPetin, it is s() olereO.
Miss McClellan and Mr. Iutitweiler. I want to express my Ilersonal appreciation and the appreciation of Senator Ilatch- an( Seniator Helms for what we consider a reat Ipublic service that hoth of yolt have rendered in bring(ring this information 1fore the committee and the full Senate as well as before the Nation. It will hell to settle the
(lust on this question of whether or not the United States owns the land in the Panama Canal Zone. I think it has been established, without doubt., that the United States does own this land.
The United States is the grantee in these deeds, is it not?
Miss MCCLELLAN. That is right.
Senator ALLEN. So I think we are now faced with the constitutional issue of whether the administration will allow the House of Representatives to act on the transfer of this property as required by article IV, section 3, paragraph 2, of the Constitution.
It is clear to me and I believe it is clear to the majority of the mnembers of the subcommittee that prior Congressional authorizations is required.
I do not believe we are going to have too many statements made in the future that the United States was just renting this land in the Canal Zone. I think it has been established without doubt that the United States, by right of purchase and by right of deed, owns the fee simple title to the land in the Canal Zone.
So we do express our deep appreciation to both of you for the public service that you have rendered.
Senator Hatch, do you have any questions?
Senator HATCH. I also would like to thank you both for the testimony that you have given. I think it is very important for every American to understand the situation. You have helped us very much.
Senator ALLE-N. We want to thank you both again very much. You have the thanks of the subcommittee and the full committee.
I will take the liberty of saying that you have the thanks of the Nation for appearing here today.
The subcommittee is adjourned subject to the call of the Chair.
[Whereupon, at 11 :30 a.m., the subcommittee was adjourned.]
[The aforementioned final report, Provisional Boundary Agreement, and representative copies of the deed records follow:]
[Also iniclud~edl hereafter is a staff report to the Chairman anl a historical sinmnary of the propriety op )erations of the U nited States in the (Canal Zone. Tjhe historical summary was prepared by the Panaiia C"anal Company and is usef id in the context of the investigation lby the Subcommittee primarily in dlescribingo in historical terms the sev-eral agencies of the United States which acquired realty foir the U~nited States at each of the various stages of the eventual purchase by the U7nited States of fee simple title to the Panamia Canal Zone.]
THE PRESIDENT OF THE UNITED STATES
THE PRESIDENT, OF THE REPUBLIC OF PANAMA
-under the provisions of Articles VI and XV of the
Treaty ratified February 26, 1904.
TftR PANAMA CANAL PRESS
MOUNT HOPE, C. 2.
-, : .NATIONAL PALACE, PANAMA, R. P.,:
...... i+ T h S c"" - .* .. .
-,he Honorable,- ,
The Secretaryof State
f the United States of America, .
WVashington, D. C.
The ,Honorable, 7
The Secretary. of ForeijgnReain
of. the Republic- of Raina,
-SIRS: The joint Commission established under- the.
tretybetween the United States of America and the
Republic of Panamfa, ratified February 26, 1904, having completed th-. cases pending before- it, has the honor tosubmit. the- following report:
The provisions of the treaty under which the Commission was- organized. read as. follows:,
:"rtice VI Thegrans herein contained shall innom ne
invalidate the titles'or rights of private land holders or owners of private property in the said.-zone or i 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 passing 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 dam~ages. 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 agentsor employees or by reason of the construction, maintenance, operation,, sanitation 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 appointed by the Governments of the United 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 xany auxiliary works relating'thereto and authorized by the terms of this treaty shall: be prevented, delayed,..dr. impeded by or pending such. proceedings to ascertain such damages. The appraisal ofsaid private lands and private property and the assessrment ofdamages to them shall be based upon their value before the date of this convention." -':. ... ..
7 "Article. XV.- The joint commission referred to inA'rticle VI shall be established as follows: -:, .. -. .
'-'TePresident of the United States shall rioinate two persons and the President of the Republic of Panama shall nominate "two persons and they shall 1foceed to a decision; but in case of disagreement of the Commission (by reason of their being equally divided:in conclusion) an umpire shall be appointed by the two Governments who-shall render the decision. In the event Of the 'death, absence, or incapacity of a .Commissioner or Umpire, or of his omitting-,declining or ceasing to act, his place shall be filled by the appointment of another person in the manner above indicated. :All decisions by a majority, of the Commission or by the ,Umpire shall be final."* .
Since 1912 the scope of the work of the Commission has been largely determined by an Act of Congress of the-United States, approved August 24, 1912, known as the Panama Canal Act, which so far as it relates to matters under consideration provides as follows:
"The President is authorized to declare by Executive Order that all land and la'nid 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 secured in the United States and 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."
In accordance with the authority contained in the above-quoted provision the President of the United States issued an Executive Order under date of December 5, 1912, declaring "That all land and land under water within the limits of the Canal Zone are necessary for the construction, maintenance, operation, protection and sanitation of the Panama Canal." The same order
directed the Chairman of. the Isthmian Canal Commission."to take possession oh behalf of the United States, of all such land and land under water.". J '.The Congress of the United States has also passed two other Acts vhich the American members of the Commission. have considered affected the work of the Comniiin:.' Section 2 of the Sundry Civil Appropriation Act_,approved March 13, 1913, -reads as follows:
--'Sec.2. No part of themoney appropriated by this Act shall be used- for payment, of salaries :br expenses of the Joint Land Commission, established under article fifteen of the treaty between the United States and the Republic of Panama, in adjudicating or settling any claim originating under any lease or contract for occupancy, made by thz! Panama Railroad Company in the Canal Zone, or for the payment of any awards made by said commission on account 6f any such claims."
Section 2 of the Sundry: Civil Appropriation Act,. approved Jtilyd 11916. reads as follows:
"Sec. 2. That the Joint'Land Commission established under article fifteen of the treaty .between the United States and.the Republic of Panama, proclaimed February twenty-sixth, nineteen hundred and four, shall not have jurisdiction to adjudicate or settle any claim originating under any lease or contract for occupancy heretofore or hereafter made by the Panama Railroad Company of land or property owned by said Panama -Railioad Company in the Canal Zone, and no part of the moneys appropriated by this or any other Act shall be used to pay such claims." >So many different commissions have been organized under the treaty that it seems desirable for the benefit of 'both Governments to incorporate in this report a brief historical statement giving the names ofthevarious commissioners- and. the work accomplished by them.
Orn January 31, 1905, a Commission consisting of Dr. Carlos A.' Cooke, and the, Hon. Federico Boyd of Pariama, -and Messrs. Thomas T. Gaff and C. A. L. Reed of the United States were appointed to fix the value of four pieces of property taken over by the United States. By an award dated February 21, 1905. Domingo Diaz was allowed $41,790 for the property of Santa Rosa and Juan Vasquez. A valuation was also placed on the three other pieces of property without any hearing having been given, and later payment appears to have been made to Mrs. -M. A. E. Delhonde, for her property of El Hatillo de Echeves, in the amount fixed in the award, viz: 83,050.
'On May 26, 1905, a Commission of the same Panamanian members, with Dr. H. R. Carter and Paymaster Eugene C.-Tobey acting for the United States, was organized to give a hearing in and make final awards for the three pieces of .property appraised in the award of February'-21; 1915., .OnMay 27; 1905, an award was Made iin two of the claims, one for $9,000 in favor of Abundio. Caselli and Francisco Alfredo Pellas, for the p roperty "El Tivoli," and the other for$1,768 in favor of the -Municipality of Panama for "La- Huerta del Peinetero.'" The other claim, that of Mrs. Delhonde, was riot" considered as settlement had been made. .
On April 10, 1907, a Commission of which the Panamanian members. were the Hon. Ramon Arias F. and Dr. Samuel Lewis, and the American members Messrs. B. S. -Ambler and M6ntgomery Blair, with .Dr. Gil Ponce as a substitute to act in cases in which Comrhissioner Arias was disqualified, met in the Administration Building in the City of Panama. On April 11 both Messrs. Arias and Ponce resigned, and on April 18 the Hon. Constantino Arosemena was appointed as the other .Panamanian member of the Commission. On May 11, 1907, two awards were made by this Commission in favor of the Pacific Mail Steamship Company, one for $20,000 for the improvements on the island of Naos and the other for $24,000 for a one-half interest in the same island.
Seven other claims were considered by this Commission but no agreement was reached as to the amounts to be paid. Three of these claims were settled in 1908 by the Umpire, the Hon. Edwin Denby, who was appointed to consider them. Award for $45,000 was made by the Umpire to Francis-Schuber for the estate of Juan Diez Caballero at Corozal, for $15,000 to Maria Concepcion Sosa for the property of Gavilan and Gavilancito, and $1,000 to Gabriel Duque for San Lazaro.
On June 8, 1908, the Commission of which Messrs. Edwin Denby and Everett C. Bumpus were the American members, and Dr. Gil Ponce J., and Dr. Julio J. Fabrega, the Panamanian members, met in Panama. On August 8, 1908, by unanimous decision of this
Commission an award was made for 13 pieces of property, in the sum- of $143,980. A list of the cases for
which awards were made is included herein so that this report will contain a list of all claims considered by the Joint Commission up to the present time.Hecta
Estate. taken by Claimants. Damages
the United .awarded.
Cardenas.......:.......:. .. 126 Hurtado family, represented by Narciso Garay.. $10,000
Peas Blancas en Medio ........ 218.5 Louisa Cereso and heirs of Aniceto Cereso ..... 4,000
Juan Grande............... Undivided Luz Espinosa............................... 250
El and La Pihiva ............... 406 Josefina Jiron and Akngiliea Jiron............: .. 20,000
Tabernilla ..................... 1S.3.5 Jean Gris and Ramon M. Valdez............. 4,500
Bailomono ...... ............. 102 Heirs of Francisco Ardilla, heirs of Remigio, Du- 2,000
taxi Correa, Alfaro Hermanos, heirs of Carlos
Icaza Arosemena, damages for whole-estate.
CalleBruja ......... .. 248 Unknown................................... 2,4S0
Palo Horqueta and Matins.. ..... 576 Unknown................................. 5,760
Barro Colorado and Palenquilla... 162.5 Unknown............................ ....... 1,625
Palenquilla and Frijol Grande.... 190 Unknown............... .................... 1,900
Barro Colorado and Frijol Grande 72.5 Unknown................... ........ 725
Santa Crus..................... 74 Unknown.................... ............ 740
Hacienda Andrade........... ..... ..... Antonio Andrade........... ........:....... 90,000
On March 1, -1913, the next Commission, consisting of Doctors Leo. S. Rowe and Rolani-d P. Falkner for the United States, and the Honorable Federico Boyd and Dr. Samuel Lewis representing the Republic of Panama, met in Panama to consider the many cases that had arisen through the order to depopulate the Canal Zone. During the latter part of September Doctor Rowe resigned and shortly thereafter Doctor Falkner also resigned. This Commission submitted an interim report under date of September 23, 1913, in which were outlined some of the principles they had followed in deciding cases. Published with this report were a number of decisions that were rendered. The report shows that 1,253 cases were disposed of. Six hundred and two cases were dismissed, 22 cases were certified to the Umpire, while 629 awards for a total of S295,709.18 were made. The totalof the claims disposed of amounted to$2,226,718.53.
The next Commission met in Ancon on May 25, 1914. It consisted of Hon. Levy M. Kagy and Hon. David Marks, representing the United States and the same Panamanian Commissioners who acted with Doctors Rowe and Falkner, their services having been kept continuous. Judge Marks, dying on July 17, 1914, little was accomplished. One hundred and three claims for $175,605.60 were disposed of; 98 of them being
dismissed mainly, because previous- settlements had Ib,een made. --,Two awards for a total of $970 were made five. 'claimsfor $22,101. ..In September,- 1914, the Commission- reorganized -ith Judge Nicholas, Cornet
-r'ho was- appointed .in the place of Judge Marks. In ;cto r;.1914 the..Commission again moved its officesiht.o the National Palacein Panama. This Conmission .Co:ntinued::~h i fd w "os .... th I ... ti
ntinued the work -of disposing of,, -the claims until S epteibe -915, when .: Dr. Samuel Lewis- resigned. Five qhundrd ad forty-nine claims amotinig to $2,595,169.19, were. disposed of; '481' being dismissed while 68 for $688,905.15. were covered by awards for $161,090.66..
During the latter half ofMarch and the first part of April, 1915, the Commission with Dr. Jorge E Boyd acting :in place of the Hon: Federico Boyd, dismissed.12 claims for $28,522.60 on evidence that direct settlements had been made. In addition 11 other claims for $145,759.45 were considered and the sum of $4,549 awarded to claimants in six awards.
-On September 23, 1915, Dr. Ricardo J. Alfaro was appointed to succeed Mr. Lewis and for a time thereafter the Hon. Ramon Arias F. acted temporarily -in place of the Hon Federico Boyd. .One hundred -and ninety-seven claims for $210,041.38 were disposed of by Commissioners Alfaro, :Arias, Cornet, and Kagy. Of these, 187 for $188,402.18 were dismissed while.4wards in 10 claims foi $22,439.20 were made in the sum of $2,350.
Commissioners Boyd, Alfaro, Cornet, and Kagy disposed of 63 claims for $84,377.60 prior to the resignation of Judge Kagy November 29, 1915. Five awards for a total of $1,707.50 were made,covering 7 claims for $24,620. Fifty-six .-claims. for $59,757.60 were dismissed.
With the arrival of the Hon. Clement L. Bouv6 in April, 1916, who was appointed to succeed Judge IKagyr, the Commission again began to actively dispose of claims pending before it. Prior to July, 1917, when the two American Commissiorners, Judges Cornetand Bouve, severed their connection with the Commission, 1,250 claims for $4,145,593.17 were disposed of. One thousand
one hundred and fifty-two claims for $2,765,531.31 were dismissed;. .14 claims were certified to the Umpire, whilehwards for 8181,675.30 covering 98 claims asking for $1,380,061.86 werermade.
On November 27, 1917, the-Commission reorganized with.Hon. Federico Boyd and Dr. R. J. Alfaro representing the Panamanian Government and Hon. Geo. A. ,Connolly and Burt New representing the United States. On November 12, 1918, Doctoi Alfaro was succeeded by Dr. Julio J. Fabrega, continuing, however, to. act in all cases in which Commissioner Fabrega was interested as an attorney. The Commission with Doctor Alfaro disposed of 96 claims for S6,100,316.28; 47 claims for.$953,548.25 were dismissed, 14 claims for $2,884,876.26 were certified to the Umpire and awards for a total of $220,952.80 were made in 25 claims asking for $2,261,891.77. The Commission with Judge Fabrega as a member disposed of 53 claims for 81,937,956.04 prior to January 31, 1920. Of these 37 claims for $458,014.60 were dismissed, 8 claims for S1,431,677.80 were certified to the Umpire and awards for a total of $12,609.38 were -made covering 8 claims asking for $48,263.64.
In November, 1919, Commissioners Alfaro, Jorge A. Boyd, Connolly, and New made one award for $2,100.20 including interest amounting to $620.67 from December, 1912, and the same Commission with Doctor Fabrega in place bf Doctor Alfaro dismissed one claim for $50,000 and certified one for $3,600 to the Umpire.
Judge Connolly resigned at the end of January, 1920. Mr. H. A. A. Smith succeeded him on February 2. Commissioners Boyd, Fabrega, New, and Smith dismissed 4 claims for $239,574 for failure to prosecute, 18 claims asking for $45,841.65 because settlement had been made, and agreed to leave on the d(locket without consideration for the reasons hereinafter stated, 16 claims for S121,779 known as Panama Railroad lease cases. The disposition of one other claim (the Playa de Flor claim for $357,040) is explained hereinafter in detail.
Commissioners, Boyd, Alfaro, New, and Smith disagreed in their conclusion relative to the liability of the United States in the the last case tried by the Commission and certified the claim asking for $20,816.67 to the Umpire for decision. In addition to the work specified above, almost every Commission has taken action in other claims due to the number of claimants or the
Admiral Victor M. Concas y-Palau was appointed Umpire in-1916 to decide cases in which the Commis.sion disagreed. From June to August, 1916 he made 10 awards for $216,800 in claims for $839,224.03, and dismissed four claims for $8,240. He also decided two questions certified to him by the Commission as to the liability of the United States arising out of the cancellation of Isthmian Canal Commission leases under certain specific conditions.
Hoi. Manuel Walls y Merino was appointed Umpire to succeed Admiral Concas. He has made 17 awards for $468,667.47 including interest incorporated in the awards, amounting to $26,972.57, in 20 claims asking for $4,453,184.65. He dismissed two claims for $177,500 and "refrained from deciding" one claim for $100,000.
The following 12 claims are now pending before'the Umpire:
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To summarize briefly: Since March 1, 1913, claims numbered 1 to 3,598 for 820,660,371.19 have been filed with the Commission. In 879 claims asking tor S11,502,943.66, 213 awards. for $1,568,581.49 have been made. In addition awards for $304,588 were made by 'prior Commissions, making a total amount awarded of $1,873,169.49. Two thousand twenty-nine claims for $3,719,930.95 were dismissed on evidence that direct settlement had been made. Claims for $3,263,063.13 were dismissed for other reasons, such as lack of jurisdiction, lack of evidence, or because of duplication,, or on claimant's motion. The disposition of 17 claims for $478,819 is explained in detail hereinafter, while 12 claims for $1,075,352.17 are pending before the Umpire. Of 319 claims for $620,262.28 dismissed on account of failure to prosecute same in accordance with the default rule. adopted by instructions of the two Governments, certain. ones seem to require some explanation.
On the day that the claims of Jose H. Stilson, docket Nos. 3062 (amount $40,300) and 3281 (amount $97,620) were set for trial, Mr." C. P. Fairman, appearing as counsel for Mr. Stilson, stated in public session before the Commission that he and his client declined to further prosecute these claims before the Commission. On the same d(lay he filed a document which he entitled "Protest, Notice, and( Demand on behalf of the Owner of Real Property" in which document he notified the Commission of his refusal to submit the condemnation of the property involved in these claims or the value thereof to the jurisdiction of the Commission, and requested that the Commission desist and refrain from further action or proceedings respecting the condemnation and appraisal of the lands covered by these two claims. Byv unai imous vote of the members of the Commission a rule of default was entered against Mr. Stilson and inasmuch as claimant failed to appear and show good and sufficient cause for setting aside the default within the 60-day period in the rule, the default was made absolute and the claims dismissed.
By agreement of counsel on both sides the claims of the Playa de Flor Land and Development Company,
--docket No. 2900, ($357,040) and of Eufracia C. de Villalobos,'et al, docket No.-3064 ($89,154) vereconsolidated.' When they were called for trial on November 17, i919,7 Mr.: C. P:. -Fairman -representing claimants in both cases, made a similar statement to that mentioned above and filed a similar document. Rule of default in both claims was accordingly entered against both claimants. At the expiration of the 60-day period. fixed in the rule, the period of default in the Villalobos claim was extended to Febiruary 24, to which date an extension had been granted in the Playa de Flor claim.
However, on February 25, 1920, there having been no appearance-on the part of claimants in the Villalobos claim nor any showing niade by them, this case was dismissed by unanimous- vote of the Commission.
On November 17, 1919, when the Playa de Flor
Land and Development Company claim for $357,040 (docket No. 2900) came on for trial, the attorney of record, Mr. C. P. Fairman, stated to the Commission in public session, and also in a written document, that he refused to submit the case to the jurisdiction of the Commission. The American members of the Commission voted to dismiss the case at once,- but inasmuch as the Panamanian members declined to dismiss the claim, a rule of default was entered against claimants. At the expiration of the 60-day period fixed in the rule, with the-consent of the two Governments, an extension of the period was granted to February 24.
Just before the close of business on February 24, the following motionr.was filed by Dr. Samuel Lewis:
Come now Perry-Popham, one of the parties at interest in the above-entitled claim and respectfully move the Commission to continue the hearing of this case or of any matters connected therewith and set it for hearing on the 13th of March, 1920, on which date the said petitioner together with counsel will appear before the Commission for the purpose of said hearing. The undersignedhereby represents to the Honorable Commission that the above-named claimants have not, for reasons beyond their control, been in a position to appear personally before the Commission and present their case, which they are ready and willing to do on the 15th of March, 1920, as the undersigned has been informed and believes.
24-681 0 78 3
..The Panamanian members of the Commission voted to grant- the motion. upon the showing made stating their reasons therefor as follows: I.h... Claimants have shown sufficient cause for not appearing on teday set for the trial of this claim.
.-.. The.'attorney for the. claimants' without their knowledge ..refused to submit the case to the jurisdiction of the Commission.
--3. -In spite of their having no notice of the conduct of their attorney claimants have made every possible effort to obtain -a
*hearing before the Commission.'
*4. Claimants have presented a Motion through Attorney Samuel Lewis,* -within the time fixed, requesting the Commission to set aside the default entered against them.
The American members of* the Commission voted to deny the motion and also voted against further extending the-period of default for the following reasons:
I? Said motion does not ask that the default be set aside.
2. There is no claimant in said claim by the name of Perry-' Popham as mentioned in the motion. 13. The reason assigned- as to why claimants have'failed to appear and prosecute said claim merely states a conclusion and does~ not state facts sufficient to show cause for setting aside the default.
4. The motion does not show that th e default-was entered through any mistake, surprise, inadvertence or excusable neglect on the part of claimants.
5. The motion does not state any fact or facts showing a good and sufficient cause for setting aside the default.
6. The facts in the case affirmatively show that all the claimants were given legal notice of the date the claim wvas set for trial and given every opportunity to come before the Commission and present their case, but they failed, neglected, and absolutely refused to prosecute their claim.
On February' 26 Mr. Lewis filed another motion requesting that all matters and interest relating to the' Playa de Flor Land and Development. Company case be left 'in suspense until the Umpire of the Joint Commission passed upon the issues by reason of the fact that the members of the Commission "are equally divided in conclusion." He further represented that "he did not apply for the setting aside of the default but simply in.ade a motion to continue thehearingof any: matters connected with the above-entitled case until the 15th of March, 1920." The American members voted to deny this motion while the Panamanian members voted to grant the request.
The position of the Panamanian members as shown by the minutes, is as follows:
"The Panamanian membersin refusing to adopt the proposition made by Commissioner New that the provisional rule of default be not set aside, proposed to have the Commission set aside the said provisional rule of default and to set the claim for public hearing on March 15, as requested by the claimants.
"On this point, therefore, the American members and the Panamanian members -are not in accord, and consequently, this is a matter, as in preceding matters, in accordance with Article XWV of the Canal treaty which passes to the Umpire for decision; therefore, the Panamanian members move that the said motion presented on the 28th of February by Dr. Samuel Lewis on behalf of the claimants, be determined by the Umpire."
The position of the American members upon this last motion, as shown by the minutes, is as follows:
"On the 25th day of February the Panamanian members voted to set aside the default upon the showing made, and the American members voted that the default should not be set aside; the default, therefore, became absolute.
"On February 26, S. Lewis, attorney for "Perry and Popham" two of said claimants, filed the motion now under consideration. The motion alleged that the motion filed on February 24, 1920, was not intended as, nor was it, a motion to set aside the default but that it was merely a motion to continue the hearing of this, case or of any matters connected therewith.
"Said motion further alleged that on account of the Members of the Commission being equally divided in the vote on said motion that the question of the continuance of the trial of the claim, and all matters connected therewith, be certified to the Honorable Umpire for decision.
"There was no allegation in this motion assigning any reason why claimants had failed, neglected, and refused to file a motion or show cause on or before February 24, 1920, for the setting aside the default.
"On account of claimants having failed, neglected, and refused to appear on or before February 24, 1920, and show good and sufficient cause for setting aside the default, the American members voted that said default be not set aside. The American members voted that the default period should not be further extended for the reason that ample opportunity had time and again been given claimants to appear before the Commission on or before February 24, 1920, and show cause for setting aside the default. They also refused to vote for a further extension of the default period for the reason that the Secretary of State of the United States had not given his consent to extend the default period beyond February 24, 1920. They also refused to extend the default period for the reason that the Commission has for
the past five months made -every possible effort to bring this claim to trial. During said time many of the claimants have absolutely refused, and still refuse, to try said claim while the other claimants have failed, neglected, and purposely delayed the trial thereof. There is no showing nor attempt to show, diligence on the part of claimants. The facts in this case disclosed by the record, show that claimants have, for some reason unknown to us, thrown every obstacle they-could in the way of the trial of this claim, and byso doing have delayed the work of the Commission which has prevented the Commission from closing its.
business 'at an earlier date."
The only cases remaining on the docket are sixteen claims, generally known as the Panama Railroad leage claims. The authority of the Commission to consider these claims was the subject, in the opinion of the American members of the Commission, of two Acts of Congress, hereinbefore quoted. The American
members have always taken the position that they were precluded by these two Acts from considering these claims, which arose out of the cancellation by the Panama Railroad Company of leases for land made by that company within the Canal Zone. The following is a list of these claims:
DocketNo.1 Claimant. Amount
1623 J. H Still n .................................. ...... .................. $1,280.00
1708 Mrs. F!orel!a Peters...................... ...................... 3,351.00
196.3 Eisondo Herrera ........................................... 2,000.00
1964 Ehi,*ndo Herrera............................................ 500.00
284 I F. C. Herbruger Co....... ............................................ 5,250.00
2849 F. C. Herbruger Co. ..................................... ........ 2,250.00
2883 J. P. Barraico ........................... .............. ................ 5,500.00
2946 Frank Ulrich, Jr ....................................................... 3,300.00
2967 Stilon and Cllrich..... ..................................... 7,980.00
2969 J.H. Sti!son ...................................................... 10,992.00
2970 1Stileon and Lawrence .......................................... 3,300.00
2985 Ferno Shall ......................... 876.00
3045 .ame Dalev......................... 200.00
3255 Emipire Athletic A sociation ............................................... 5,000.00
3282 J. H. Stilson ....................................... 50,000.00
32.33 J. H. Stilson .......................... ....................... 20,000.00
Except for rather extended periods during which one or more Commissioners were lacking and except for four recess periods of 60 days each during the years 1916, 1917, 1918, and 1919, a Commission has been in session ever since an organization was effected on March 1,
1913, and hearing or ready to hearcases which might
be properly presentec-to it, and to dispose of the claims accumulating under the depopulation order following the Act of Congress of August 24, 1912. One member of the present Commission was a meinmber of the first Commission of 1905. Except for a few months' absence, the.Hon. Federico Boyd has also served continuously as a member of the Commission since March 1, 1913. The following is a list of the Commissioners and the periods of time during which they have served:*"
APPOINTED BY PRESIDENT OF PANAMA.
March 1, 1913, to March 15, 1915.
April 20, 1915, to September 22, 1915..
November 1, 1915, to November 5, 1919.
November 24, 1919, to finis. SAMUEL LEWIS.
March 1, 1913, to September 14, 1915. JORGE E. BOYD.
-March 15, 1915, to April 19, 1915.
November 6, 1919, to November 23, 1919. R. J. ALFARO.
September 23, 1915, to November 11, 1918 and in -cases considered thereafter in which Commissioner
Fabrega was interested as an attorney. RAMON ARIAS F.
September 23, 1915, to October 31, 1915. JULIO J. FABREGA.
November 11, 1918, to finis.
APPOINTED BY PRESIDENT OF UNITED STATES.
LEG S. ROWE. :
'-March 1, 1913, to September 23, 1913. ROLAND P. FALKNER. SMarch 1, 1913, to December 17, 1913. LEVI M. KAGY.
May 25, 1914, to November 29, 1915.
May 25, 1914, to July 17, 1914. NICHOLAS CORNET.
September 18, 1914, to June 30, 1917. C. L. BOUVE. "
April 7, 1916, to June 30, 1917. GEORGE A. CONNOLLY.
November 27, 1917, to January 31, 1920. BURT NEW.
November 27, 1917, to finis. H. A. A. SMITH.
February 2, 1920, to finis.
With the enlargement of the work of the Commission due to clearing the Canal Zone of all private property owners, it became necessary for the Commission to adopt definite rules of procedure so that its work might be carried to conclusion. As the treaty was silent on the subject, the two Governments have at times given consideration to the methods that should be followed by the Commission to enable it to accomplish the purposes of its formation;, and certain instructions have been issued by the Governments concerned, which were thereupon adopted by the Commission for its guidan,,ce. The various rules and instructions are included in Appendix A, attached hereto.
'All awards, opinions, and rules of dismissal have been published in The Panama Canal Record and thus are readily available.
Attached to this report is a list of all the claims filed with the Commission since March 1, 1913, prepared by the Secretary thereof, Miss Genella Bliss, and her assistant, Mr. John J. Dudak, showing the docket number of each claim, the amount claimed, the amount awarded if an award was made and the cause of dismissal if the claim was dismissed as well as the initials of the Commissioners or the name of the Umpire acting on the claim. This statement is designated as Appendix B.
All documents, records, transcripts, the complete files in claims numbered from 1 to 3598, inclusive, and all other property of the Commission, except the records and files in the claims pending before the Umpire which will be left in the office for his use, will be turned over by. the secretary of the Commission to the American Minister to Panama, just as soon as the secretary completes the check she is making of the statement to be attached to this report.
In closing this report we wish to thank the officials of the Republic of Panama for granting the use of the commodious offices in the National Palace.
H. A. A. SMITH,
S-JULIO J. FABREGA,
Joint Commission Rules of Procedure for Filing of Claims and Cond uct of Hearings, etc.1, 1_9 13 to' 1920:
Adopted' March 18, 1913.
I. All persons having title or claim to, or interest in, lands, or lands under water, situated in any part of the Canal Zone, except in the exempted area, or who have suffered damages of any kind by reason of the grants contained ifl the Treaty, or by reason of the operations of the United States, its agents oremployees, or by reason of the construction, maintenance, operation, sanitation, or protection of the said Canal, shall file with thc Joint Land Commission, a statement of the entire extent of their property rights and interests. Such statement should include the name, residence, and post-office address of the claimant, the amount of the claim, the location and extent of the property, indicated wherever practicable by maps or drawings, the uses to which such property is put and a descriptioni of the improvements which have been made thereon, and should be accompanied* by a statement of the title and right's of the claimant thereto, supported by all existing documentary proofs of title.
Statements referring to claims of ownership to land or land under water. together with accompanying documents should be filed -in four copies, but of the legal documents submitted as proofs, one copy only need be attestedAll other, claims presented to the Commission should be filled in at least two copies. All claims should be submitted on a form supplied by the Commission. Such statements of claim and all other forms required by the Coinmission can he obtained on and after March 14, 1913, from the secretary 6f the Commission, at the several police stations in the Canal Zone, or at the office of the secretary of the municipal council of the City of Panama.
11. The statements above described to be presented by all claimants to private property, should be filed with the secretary of the Joint Land Commission, National Palace, Panama, with as little delay as possible. Claimants to land located in the area between Gatun and Gamboa should file their statements not later than March 31, 1913, and claimants to land located in the remainder of the Canal Zone should file their statements not litter than April 15, 1913.
111. Failure on the part of claimants to file thc required statement will not preclude the joint Land Comnmission from acting upon all 'cases properly comning before it, without the cooperation of the persons most directly interested.
SIV. After an examination of the papers filed ,with the Joint'Land Coinmiissioa, an opportunity will be given to all claimants to present further evidence in public hearings. The joint Land Commission reserves the right to Call upon claimants for further information and for documents supplementary to those filed with the original statement.
V. The Commission will begin hearings upon claims which are ready for adjudication, relating to any lands, in the district between Gamboa and Gatun, excepting to~~nsites, 'on, Monday, M.Narch 17, 1913;in the Assembly Hall, National Palace, Panamna. Due notice of further hearings will be given from time to time.
VI., Proceedings before the Commtission may be instituted by the claimant in person, or through his or her attorney in fact or agent. If the claimitnt is represented by an attorney in fact or agent, a written declaration designating the person to represent the claimant munst be filed with the secretary of tht21
Joint Land Commission. Claimants presenting such a declaration in person should sign the same in the presence of the secretary. In case such declarations are not presented in person, the signature of the claimant should be attested in the Republic of Panama, by a municipal official, or in the Canal Zone by the agent in charge of any police station. Forms for the designation of attorneys or agents can be obtained from the secretary of the Commission, and within the Canal Zone at the several police stations, and at the office of the secretary of the municipal council of the City of Panama. VII. All documents required by the Commission, as well as proceedings before the Commission, may be in either Spanish or English.
VIII. With reference to the admissibility of evidence, the Commission will follow the procedure of a commission of inquiry rather than the technical rules of evidence.
IX. If the claimant be an executor, administrator, guardian, or representative appointed by a judicial tribunal, a duly authenticated copy of the record of the appointment must be filed with the secretary of the Commission.
X. The Commission reserves the right to require that motions submitted be put in writing.
XI. All expenses incident to the presentation of witnesses shall he-paid by the party at whose motion the witnesses appear.
XII. Upon the filing of claims, notice thereof will be served on the counsel for the United States. The. Commission will. in each case, fix a time for the filing of an answer, and will then proceed to fix a time for hearing. Notice of such hearing will be served on the claimant, or his representative, and on counsel for the United-States.
Such notice shall be signed by the secretary of the Commission and shall recite the time when such cause shall be called for hearing and be served upon the parties affected thereby by sending the same through the mail or otherwise; as the Commission shall determine. Such notice so sent shall be deemed sufficient notice to said parties, unless it shall later appear that it has-not as a fact been received; and, in that event, further notice may be given, if it appears necessary to the Commission.
XIi 1. At the time fixed for the hearing (or at a later date, if so determined by the Commission) any party possessing an interest in the.land or improvements thereon may appear and enter a plea in writing, or orally, to be set forth in the record, stating the nature and extent of interest, the amount of damages. and any other matter which the party may desire to have considered in the premises.
If more than one party claiming damages shall appear, they may plead jointly or separatcly as they may elect.
XIV. The counsel for the United States shall. at the time of the entry of such pleadings provided for in Rule XIII, or later, if the Commission so determine, file an answer in writing or verbally, to be entered upon the record, joining issue in the premises. A copy of such answershall be served upon the claimant or upon the attorney in fact, or agent.
XV. In all cases in which the claimant, or his representative, and counsel for the United States are agreed on all questions of title, area, and boundaries, a stated case may be presented to the Commission, which will enable the Commission immediately to proceed to a hearing of the case and the valuation of the property.
XVI. In all public hearings, as preliminary, the claimant, or his representative, will make a brief but substantial statement of the claim, in Which he will embrace the material facts which, in his opinion, are established by the evidence. After the statement on behalf of the claimant, counsel for the Government of the United States, will. in like manner make a statement of the Government's position. Witnesses will then be called by the claimant for direct ;nd cross examination, to be followed by witnesses for the Government of the United States for direct and cross examination. The claimant, or his representative. may then call witnesses in rebuttal, but the Commission reserves the right to fix the time allotted to such rebuttal.
At the conclusion of the testimony, the claimant, or his representative, and counsel for the Covernment of the Un'ited states will proceed to argue the case in detail. Arguments will be limited to one-half hour on a side. In all
cases, however, 20 minutes will be allotted to counsel for the claimant for final summing up. This limit of time may be extended by the Commission. When additional time is necessary on either side, application therefor must be made in writing before the hearing begins. .
XVII. I a claimant fails to appear after due notice has been given, the Commission reserves the right to consider such evidence as may be available. The claimant may, however, appear at any time prior to the final award.
XVIII. If the Commission, or a majority thereof, shall agree upon A decision in any cause heard before it, it shall make the same a part of the record of the proceedings and send a certified copy of the same to the Government of the United States, and to the Government of the Republic of Panama, and any party affected by such decision shall have a right to take a copy of the same.
XIX. In the event of a disagreement of the Commission, such disagreement shall be certified to and forwarded to both of said Governments.
XX. Subpoenas, at the request of counsel for the United States, or of any claimant. or his representative, shall be issued by the-secretary of the Joint Commission,. which said subpoenas may be served by the police of either Government.
XXI. These rules may be repealed or amended by the Commission at any time hereafter as it may determine.
The Commission furthermore reserves the right to modify the application of these rules to any particular case if, in the opinion of the Commission, the interests of justice are promoted thereby.
Adopted March 18, 1913.
The Joint Land Commission will not take jurisdiction of claims arising from leases or licenses of the Isthmian Canal Commission or the Panama Railroad Company, which leases or licenses provide for the taking over of such properties for Canal or railroad purposes upon notice to tenant or licensee; this being a matter of agreement between the parties and governed by local law.
Adopted March-18, 1913.
In case of disputes between private land owners as to the limits of their property, the Com'mission will. in a proper case, make a separate award for the disputed territory, depositing the amount of such award with a court of competent jurisdiction and leaving to such tribunal the adjudication of the rights of the several claimants. The Commission will, however, undertake to determine questions of title as between the United States and private owners.
If, in the course of the adjudication of a claim, an adverse claimant to title appear, the Commission will deposit any award that may be made for such land with a court of competent jurisdiction, and leave the adjudication of the rights of adverse claimants to such tribunal. If. however, a lessee of private property present an adverse claim for the value of improvements, the Commission will make award to the holder of title for the value of the land and a separate award for the value of improvements. The latter will be deposited with a court of competent jurisdiction, where the respective claims of lessor and lessee will be adjudicated.
Adopted March 24, 1913.
In determining the value of lands taken by the United States,the Commission must 1w governed by the ternis of Article VI, which provides:
"The appraisal of said private lands and private property and the as.sessment of damages to them shall be based upon their value before the date of this convention."
In the application of the Treaty, the Commission will follow the principles of the Commission of 1908, which are stated in their report to hav been the following:
"To hear all evdnepresented bearing upon the fair value of the prop.-rty
-to be expropriated by the United States, and upon damages thereto; to consider especially, as elements of such valuation, the extent and character of the property affected, its location, for what it is adapted or could be adapted within a reasonable time; as well as to take into account other pertinent considerations and, in determining the basis upon which -damag~es are to be assessed, to eliminate from consideration the effect which the building of the. Canal may have had upon the value of such estates"
Adopted J une 3, 1913.The Commission takes judlicial no tice of all official records-of the Govern'ment of the United States and of the Government of Panama pertaining to the inquiries conducted by the Commission. The, Commission will at all times receive any- paper 's or documents submitted by claimants or 'counsel relating to or tending to controvert the: content of such official records.
Adopted June 3, 1913. ---,.---In the matter of claims of corporations, it is the purpose of the Commisrsion 'to make the award to such corporations, allowing persons- who -have an interest or who own equities therein, to assert such. interest, or equities before a court of competent Jurisdiction. --Addpted June 11, 1913.Where the existence of a release is'pleaded in bar of a claim, the Commission will of its own motion make an examination of the -releases filed in the office of the Examiner of Accounts and Disbursing Officer, and of such official records the Commission will take judiciai notice. Where a verbal agreement of settlement is pleaded the claim will remain before the Commission until the Commission receive official notice that payment has been' made by the Government in settlement of such claim.
Adopted June 171,.1913,.
Settlers or occupiers on public lands in the Canal Zone, who went upon such lands prior to the Treaty of 1903 are entitled to compensation, and the fact that such persons subsequently accepted licenses from, the Government of the United States does not extinguish the rights which accrued prior to'the
treaty.- '--:-Adopted July 28, 1913.*
In view of the provision of the treaty that "'all the decisions by a majority of the Commission or by the Umpire shall be final"7the Commission is without power to receive any protests against its awards.
Adopted June 9, 1914.
When a ease is set for hearing, and the claimant or- the Government, or defendant is not ready for trial at the time the case is set for hearing. the claimant or the Government or their respective attorneys desiring that the cause be continued or reset, shall file an affidavit in writing stating the reasons why such party is not ready for trial, and, if the affidavit is found sufficient by the Commission, then the case shall be taken off the setting and shall be put on the call docket, to be called at the pleasure of the Commission after all the other cases have been disposed of. The affidavit shall contain these words: "This affidavit is made in good faith and not for the purpose of delay, but that justice may be (lone."
Rules entered of record June 27, 1914, after adoption by the Governments of the United States of America and the Republic of Panama:
1. The-jurisdiction of the Commission shall be invoked by petition of the claimant, verified by his oath, or that of his agent, made before some officer authorized to administer oaths in the United States, the Republic of P'anama or the Canal Zone.
2. The Commission may designate two of its members, one from each country, to make inspections and to take evidence; but the decision shall be based on all the evidence in the case and shall be made only by the Commission: and in every case the Commission shall, upon thc- request of either party, grant a. full and free hearing.
.3. Claims not presented to the Commission within six calendar months after it resumes its sessions at Panama shall be barred, unless the Commission shall for exceptional reasons extend the time three months in a particular case.
Adopted August 18, 1914.
The time fixed by the Government of the United States and the Republic of Panama within. which claims may be filed with the Joint Land Commission for damages-which have accrued to any person or persons, on account of the construction of the Panama Canal and under the treaty between the United States and the Republic of Panama, under Rule No. 3 lately adopted and as amended by the two Governments will expire on December 27, 1914.
Adopted October 19, 1914.
All pleadings, motions, and affidavits, for continuance shall be filed in writing by the-parties in interest, or their attorneys, and by the attorneys representing the -United States Government, in triplicate. The secretary shall immediately upon receipt of such motions, pleadings, or affidavits, in triplicate, in accordance with this rule, mail to the attorney, or party of the opposing side, one copy thereof. The motiori, pleading, or affidavit shall then stand for final disposition by the Commission at any time after five days from the date of filing, unless both sides agree to its disposition at an earlier date.
Adopted October 24, 1914. "
The trial docket for claim to be heard by the Joint L.and Commission shall be made up of claims in accordance with their numerical order on the docket and their date of filing, regardless of their location on the Canal Zone.
Causes shall be set on each Monday afternoon for the following week and the Secretary shall immediately cause notices of thesettings to be published in the Star & Herald, the Panama Morning Journal, The Panama Canal Record, arid the Gaceta Oficial, and shall also mail or deliver copies of the setting to the respective attorneys interested therein.
All rules or parts of rules in conflict with this rule, are hereby repealed annulled, and set aside.
Adopted March 22, 1915.
The Commision will not proceed to the hearing of claimii in which there are adverse private claimants. In all ca us in which thtre are adverse private claimants to the same property, they should either adjust their differences by compromise or settle then by adjudcation before urging their claim before the CommisUson.
Adopted October 2, 1913.
1. The claimant-who first filed his claim with the Commission or whose claint has the lowest number on the docketwill be treated primarily as the real owner of the claim unless an adverse claimant proves to have a bona fide claims to the whole or some part of the property taken for Canal purposes in conformity with the provisions of the treaty of November 18, 1903. 11. 'All persons having a claim in conflict with the rights asserted by previous ;claimants shall present evidence within a term to be fi-xed in each case by the 'Commission in order to show that such conflicting rights are in course of being decided by a competent tribunal of the Canal Zone or. by arbitrators or by direct amicable settlement.
111. The evidence required by the Commission for the above purpo.s-e shall be a certified *copy of the'complaint or judicial proceedings brought by the ...second claimant against the claimant who has the lowestrnumber on the docket, or a copy of the act whereby the case was submitted to arbitration, or a showing that an amicable settlement will be reached within a reasonable time. 11 IV. if, within the term fixed by the Commission. no evidence is produced to show that proceedings. have been instituted in order to have the controversy properly decided or settled as above set forth, the Commission shall direct that the claim first filedl be heard and finial decision shall be rendered on its merits. '. ..'
V. The preceding rule is set down without prejudice to the right of private individuals or corporations to institute whatever proceedings may be allowed by law in order to recover, from parties in whose favor any award has been rendered, such moneys as may have been paid then by the United States according to the award as a compensation for land or property taken for Canal purposes and belonging to such private individuals or corporations.
Rules relative to the continuance or dismissal of cases, adopted April 13, 1916, after approval by-both Govern inents:
It is ordered that when a case is set for hearing, and the claimant is not ready for trial when his case is called and the claimant or his attorneys desire that the* cause be continued or reset, he shall file an affidavit in writing, stating the reasons wvhy such party is not ready for trial, and, if the affidavit is found sufficient by the Commission the case shall be put on the call (locket to be called- at the pleasure of the Commission, or placed at the foot of the dlocket to be called after all other cases have been disposed of.
If the affidavit is not considered sufficient by a majority of the Commission to entitle the claimant to a continuance, or in case no affidavit for a continuance is filed, a rule of default shall be entered against the claimant.
Upon the entry of such rule of default (at the end of each month) notice thereof shall be given-by four successive publications, one each week, in the English' and Spanish la nguages in newspapers of general circulation in the Republic of Panama, notifying such claimants to appear in person or by attorney, within 60 days from the first of said publications and show good and sufficient cause why such default should be set aside, and take active steps to prosecute their claims, and failing to so appear within 60 days from said first publication their claims will be considered as having been either settled or- abandoned and the same will be dismissed and forever barred.
Adopted April 18, 1916.
All oral arguments of claims and either matters coming before the joint Commnission appointed under Articles VI and XV of the Treaty between the United States of America and the Republic of Panama, signed Novemiber 18, 1903. for the adjudication and settlement of damages to private property caused by the construction, operation, sanitation, etc., of the Panama Canal, will be limited to one hour on a side, including the opening and closing arguments. When additional time is desired by counsel for either side in a particular case.. a request therefor must be made to the Commission before the ar gi nient i
begun, counsel stating clearly the grounds on which the request is based. On a proper showing being made, the Commission may, within its discretion, extend the original time limit. Any rules conflicting with the above are hereby repealed and annulled.
Adopted May 4, 1916.
Disagreements shall be certified to the "Umpire appointed under the treaty," instead of to the "Governments, parties to the treaty." Before the certification of any case to the Umpire, the conclusions reached by the commissioners shall be stated in writing and shall be supported by written opinions, all of which shall form a part of the record certified to the Umpire.
Adopted June 30, 1916.
When the Commission shall certify a case to the Umpire under the pertinent provisions of the Treaty of 1903 between the United States and Panama the fact of such certification shall be announced in open court, and the Secretary of the Commission shall forthwith notify the parties interested through their attorneys that such certification has been perfected. Counsel shall be allowed ten d(lays from the date of such notification to file with the Commission such brief or written argument as they may see fit, which brief or written argument shall be attached to the record and form a part thereof when the papers in the case are submitted to the consideration of the Umpire.
STATEMENT OF CLAIMS FiaE-D WITH THE JOINT COMMISSION SHOWING DISPOSITION4 THEREOF. Symbols indicating CommissiMers actig on claims.
A = RICARDO j. ALFARO. F =JULIO J. FABREGA.
'Ar = RA1oN AR.IAS F. Fk =RoLA-ND P. FALKNER.
B =FEDERICO BOYD. K = LEVI M. KAGY.
Bd =JORGE.E. BOYD. L = SAM)UEL LEWIS.
BV =CLEMENT L. BouvE. MN1 DA-vvD MARKS.
C = NICHOLAS CORNET. N = BuRT NEW.
Cy =GEORGE A. CONNOLLY. R =LEo S. RoN,,.
S H. A. A. SMIT.
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