Where the bill is solely to restrain the Secretary of the
Treasury from paying specific sums to a specific party, this Court
may take judicial notice of the fact that such payments have
actually been made, and in that event, whether rightfully made or
not is a moot question.
While the courts may protect a citizen against wrongful acts of
the government affecting him or his property, the remedy is not
necessarily by injunction, suit for which is an equitable
proceeding, in which the interests of the defendant as well as
those of the plaintiff will be considered.
Subsequent ratification is equivalent to original authority, and
where Congress authorizes the acquisition of territory in a
specific manner from a specific party, and it is otherwise
acquired, the subsequent action of Congress in enacting laws for
the acquired territory amounts to a full ratification of the
acquisition and the action of the Executive in regard thereto, and
the concurrent action of Congress and the Executive in this respect
is conclusive upon the courts.
The courts have no supervising control over the political branch
of the government in its action within the limits of the
Constitution.
The title of the United States to the Canal Zone in Panama is
not imperfect either because the treaty with Panama does not
contain technical terms used in ordinary conveyances of real estate
or because the boundaries are not sufficient for identification,
the ceded territory having been practically identified by the
concurrent action of the two interested nations.
Under the commerce clause of the Constitution, Congress has
power to create interstate highways, including canals, and also
those wholly within the territories and outside of state lines.
The previous declarations of this Court upholding the power of
Congress to construct interstate or territorial highways are not
obiter dicta, and to announce a different doctrine would
amount to overruling decisions on which rest a vast volume of
rights and in reliance on which Congress has acted in many
ways.
25 App.D.C. 510 affirmed.
In a general way, it way be said that this is a suit brought in
the Supreme Court of the District of Columbia by the appellant,
alleging himself to be a citizen of Illinois and the owner or
property subject to taxation by the United States,
Page 204 U. S. 25
to restrain the Secretary of the Treasury from paying out money
in the purchase of property for the construction of a canal at
Panama, from borrowing money on the credit of the United States,
from issuing bonds or making any payments under the Act of
Congress, June 28, 1902, 32 Stat. 481, providing for the
acquisition of property and rights from Colombia and the canal
company, and the construction and operation of the canal and the
Panama Railroad. The Republic of Panama and the New Panama Canal
Company of France were named parties defendant, but they were not
served with process, and made no appearance. A demurrer to the bill
was sustained, and the bill dismissed. This decree was affirmed by
the Court of Appeals, from whose decision this appeal was
taken.
Page 204 U. S. 30
MR. JUSTICE BREWER delivered the opinion of the Court.
If the bill was only to restrain the Secretary of the Treasury
from paying the specific sums named therein, to-wit, $40,000,000 to
the Panama Canal Company, and $10,000,000 to the Republic of
Panama, it would be sufficient to note the fact, of which we may
take judicial notice, that those payments have been made, and that
whether they were rightfully made or not is, so far as this suit is
concerned, a moot question.
Cheong Ah Moy v. United
States, 113 U. S. 216;
Mills v. Green, 159 U. S. 651;
American Book Co. v. Kansas, 193 U. S.
49;
Jones v. Montague, 194 U.
S. 147.
But the bill goes further and seeks to restrain the Secretary
from paying out money for the construction of the canal, from
borrowing money for that purpose and issuing bonds of the United
States therefor. In other words, the plaintiff invokes the aid of
the courts to stop the government of the United States from
carrying into execution its declared purpose of constructing the
Panama Canal. The magnitude of the plaintiff's demand is somewhat
startling. The construction of a canal between the Atlantic and
Pacific somewhere across the narrow strip of land which unites the
two continents of America has engaged the attention not only of the
United States, but of other countries, for many years. Two routes,
the Nicaraugua and the Panama, have been the special objects of
consideration. A company chartered under the laws of France
undertook the construction of a canal at Panama. This was done
under the superintendence and guidance of the famous Ferdinand de
Lesseps, to whom the world owes the Suez canal. To tell the story
of all that was done in respect
Page 204 U. S. 31
to the construction of this canal prior to the active
intervention of the United States would take volumes. It is enough
to say that the efforts of De Lesseps failed. Since then, Panama
has seceded from the Republic of Colombia and established a new
republic, which has been recognized by other nations. This new
republic has by treaty granted to the United States rights,
territorial and otherwise . Acts of Congress have been passed
providing for the construction of a canal, and in many ways the
executive and legislative departments of the government have
committed the United States to this work, and it is now
progressing. For the courts to interfere, and at the instance of a
citizen, who does not disclose the amount of his interest, stay the
work of construction by stopping the payment of money from the
Treasury of the United States therefor would be an exercise of
judicial power which, to say the least, is novel and
extraordinary.
Many objections may be raised to the bill. Among them are these:
does plaintiff show sufficient pecuniary interest in the subject
matter? Is not the suit really one against the government, which
has not consented to be sued? Is it any more than an appeal to the
courts for the exercise of governmental powers which belong
exclusively to Congress? We do not stop to consider these or
kindred objections; yet, passing them in silence must not be taken
as even an implied ruling against their sufficiency. We prefer to
rest our decision on the general scope of the bill.
Clearly there is no merit in plaintiff's contentions. That,
generally speaking, a citizen may be protected against wrongful
acts of the government affecting him or his property may be
conceded. That his remedy is by injunction does not follow. A suit
for an injunction is an equitable proceeding, and the interests of
the defendant are to be considered as well as those of the
plaintiff. Ordinarily it will not be granted when there is adequate
protection at law. In the case at bar, it is clear not only that
plaintiff is not entitled to an injunction, but also that he
presents no ground for any relief.
Page 204 U. S. 32
He contends that whatever title the government has was not
acquired as provided in the Act of June 28, 1902, by treaty with
the Republic of Colombia. A short but sufficient answer is that
subsequent ratification is equivalent to original authority. The
title to what may be called the Isthmian or Canal Zone, which at
the date of the act was in the Republic of Colombia, passed by an
act of secession to the newly formed Republic of Panama. The latter
was recognized as a nation by the President. A treaty with it,
ceding the Canal Zone, was duly ratified. 33 Stat. 2234. Congress
has passed several acts based upon the title of the United States,
among them one to provide a temporary government, 33 Stat. 429;
another, fixing the status of merchandise coming into the United
States from the Canal Zone, 33 Stat. 843; another, prescribing the
type of canal, 34 Stat. 611. These show a full ratification by
Congress of what has been done by the Executive. Their concurrent
action is conclusive upon the courts. We have no supervising
control over the political branch of the government in its action
within the limits of the Constitution.
Jones v. United
States, 137 U. S. 202, and
cases cited in the opinion;
In re Cooper, 143 U.
S. 472,
143 U. S. 499,
143 U. S.
503.
It is too late in the history of the United States to question
the right of acquiring territory by treaty. Other objections are
made to the validity of the right and title obtained from Panama by
the treaty, but we find nothing in them deserving special
notice.
Another contention, in support of which plaintiff has presented
a voluminous argument, is that the United States has no power to
engage in the work of digging this canal. His first proposition is
that the Canal Zone is no part of the Territory of the United
States, and that therefore the government is powerless to do
anything of the kind therein. Article 2 of the treaty, heretofore
referred to,
"grants to the United States in perpetuity the use, occupation,
and control of a zone of land and land under water for the
construction, maintenance, operation, sanitation, and protection of
said
Page 204 U. S. 33
canal."
By Article 3, Panama
"grants to the United States all the rights, power, and
authority within the zone mentioned and described in Article 2 of
this agreement, . . . which the United States would possess and
exercise if it were the sovereign of the territory within which
said lands and waters are located, to the entire exclusion of the
exercise by the Republic of Panama of any such sovereign rights,
power, or authority."
Other provisions of the treaty add to the grants named in these
two articles further guaranties of exclusive rights of the United
States in the construction and maintenance of this canal. It is
hypercritical to contend that the title of the United States is
imperfect, and that the territory described does not belong to this
nation because of the omission of some of the technical terms used
in ordinary conveyances of real estate.
Further, it is said that the boundaries of the zone are not
described in the treaty; but the description is sufficient for
identification, and it has been practically identified by the
concurrent action of the two nations alone interested in the
matter. The fact that there may possibly be in the future some
dispute as to the exact boundary on either side is immaterial. Such
disputes not infrequently attend conveyances of real estate or
cessions of territory. Alaska was ceded to us forty years ago, but
the boundary between it and the English possessions east was not
settled until within the last two or three years. Yet no one ever
doubted the title of this Republic to Alaska.
Again, plaintiff contends that the government has no power to
engage anywhere in the work of constructing a railroad or canal.
The decisions of this Court are adverse to this contention. In
California v. Pacific Railroad Company, 127 U. S.
1, it was said:
"It cannot at the present day be doubted that Congress, under
the power to regulate commerce among the several states, as well as
to provide for postal accommodations and
Page 204 U. S. 34
military exigencies, had authority to pass these laws. The power
to construct, or to authorize individuals or corporations to
construct, national highways and bridges from state to state is
essential to the complete control and regulation of interstate
commerce. Without authority in Congress to establish and maintain
such highways and bridges, it would be without authority to
regulate one of the most important adjuncts of commerce. This power
in former times was exerted to a very limited extent, the
Cumberland or National road being the most notable instance. Its
exertion was but little called for, as commerce was then mostly
conducted by water, and many of our statesmen entertained doubts as
to the existence of the power to establish ways of communication by
land. But since, in consequence of the expansion of the country,
the multiplication of its products, and the invention of railroads
and locomotion by steam, land transportation has so vastly
increased, a sounder consideration of the subject has prevailed and
led to the conclusion that Congress has plenary power over the
whole subject. Of course, the authority of Congress over the
territories of the United States, and its power to grant franchises
exercisable therein, are, and ever have been, undoubted. But the
wider power was very freely exercised, and much to the general
satisfaction, in the creation of the vast system of railroads
connecting the East with the Pacific, traversing states as well as
territories, and employing the agency of state as well as federal
corporations.
See Pacific Railroad Removal Cases,
115 U. S.
1,
115 U. S. 14,
153 U. S.
18."
In
Luxton v. North River Bridge Co., 153 U.
S. 525,
153 U. S. 529,
Mr. Justice Gray, speaking for the Court, says:
"Congress therefore may create corporations as appropriate means
of executing the powers of government, as for instance a bank for
the purpose of carrying on the fiscal operations of the United
States, or a railroad corporation for the purpose of promoting
commerce among the states.
M'Culloch v. Maryland, 4
Wheat. 316,
17 U. S. 411,
17 U. S.
422;
Osborn v. Bank of United
States, 9 Wheat. 738,
22 U. S.
861,
22 U. S. 873;
Pacific
Railroad Removal Cases,
Page 204 U. S. 35
115 U. S.
1,
115 U. S. 18;
California v.
Central Pacific Railroad, 127 U. S. 1,
127 U. S.
39. Congress has likewise the power, exercised early in
this century by successive acts in case of the Cumberland or
National road, from the Potomac across the Alleghenies to the Ohio,
to authorize the construction of a public highway connecting
several states.
See Indiana v. United States, 148 U. S.
148."
See also Monongahela Navigation Company v. United
States, 148 U. S. 312.
These authorities recognize the power of Congress to construct
interstate highways.
A fortiori, Congress would have like
power within the territories and outside of state lines, for there
the legislative power of Congress is limited only by the provisions
of the Constitution, and cannot conflict with the reserved power of
the states. Plaintiff, recognizing the force of these decisions,
seeks to obviate it by saying that the expressions were
obiter
dicta; but plainly they were not. They announce distinctly the
opinion of this Court on the questions presented, and would have to
be overruled if a different doctrine were now announced. Congress
has acted in reliance upon these decisions in many ways, and any
change would disturb a vast volume of rights supposed to be fixed;
but we see no reason to doubt the conclusions expressed in those
opinions, and adhere to them. The Court of Appeals was right, and
its decision is
Affirmed.