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not only of the United States but of other countries for many years. Two routes, the Nicaragua 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 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 judical 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.
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, 499, 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 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 the agreement. . . . which the United States would possess and exercise if it were the sovereign of the territory within which said lands
and waters or 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, 39, 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 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, 14, 18."
In Luxton v. North River Bridge Company, 153 U.S. 525, 529, Mr. Justice Gray, speaking for the court, said:
"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. McCulloch v. Maryland, 4 Wheat, 316, 411, 422; Osborn v. Bank of United States, 9 Wheat. 738, 861, 873; Pacific Railroad Removal cases, 115 U.S. 1, 18; California v. Pacific Railroad, 127 U.S. 1, 39. Congress has likewise the power, exercised early in this century by successive acts in the Cumberland or National road, from the Potomac across the Alleghanies 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
Senator SCOTT. In 1971, the fifth circuit court of appeals, in U.S. v. Roach-this is a 1971 case in which certiorari was denied in 1972stated: "The Canal Zone is an unincorporated territory of the United States."
So, Mr. Chairman, the first article of the canal treaty is attempting to transfer U.S. property and sovereignty over the Canal Zone.
These are opinions of both cabinet officers and our highest court made near the time we acquired the zone and the exhaustive study of authorities made by the Library of Congress in its paper dated August 4, 1977. The only rationale I know for persons presently holding positions within the executive branch of Government to deny that we hold title or sovereign rights in the Canal Zone is to close ranks in support of the treaty signed by the President.
U.S. ACQUISITION, GIVEAWAY OF CANAL ZONE
I wonder if each Senator early in his school experience didn't learn that the United States acquired the Canal Zone, that we rid the area of disease, constructed the canal, and operated it under the American flag since the beginning of this century. At a time when world domination is being sought by a form of government entirely different from our own, it appears untenable to give away this vital artery, to pay Panama for taking it, and to commit ourselves to defend it.
MILITARY STATEMENTS CONCERNING SOVEREIGNTY
This view is shared by Admiral Thomas H. Moorer, Chairman of the Joint Chiefs of Staff from 1970 to 1974, who testified before the Senate Subcommittee on Separation of Powers. Toward the end of his testimony on July 22 of this year, Admiral Moorer made these
Surrender of U.S. sovereignty over the Canal Zone would inevitably lead to the transformation of the entire friendly character of the Caribbean and the Gulf of Mexico. Everything would depend on the attitude of those who held sovereignty and ownership. I might say that in military affairs there is no substitute for the ownership of the territory and the ability to control or to deny the waters and the airspace.
Of course, Mr. Chairman, Admiral Moorer retired as our No. 1 military officer and is in a position to candidly express his opinion at this time, and I believe we can well understand the hesitancy of some active members of the military forces publicly disagreeing with their Commander in Chief.
We need only to reflect on General John Singlaub being called back from Korea and being reassigned because of a candid statement he made, and the rebuke of General Starry, John Starry, by the Secretary of the Army to realize that active duty officers and even civilian Government officials are not entirely free to express opinions contrary to the administration's position.
Before these rebukes, however, on March 11, 1977, during a closed session of the Subcommittee on Manpower and Personnel of the Com
mittee on Armed Services, Admiral Maurice Weisner, presently Commander in Chief, Pacific, or in other words, the commander of all of our armed forces for one-half of the globe, with headquarters in Hawaii, responded to specific questions regarding the importance of the canal to the United States. This testimony is reported at page 2378 of the hearings on military procurement for the fiscal year 1978. I ask, Mr. Chairman, to include the page in the record. The CHAIRMAN. Without objection, it is so ordered. [The information referred to follows:]
FISCAL YEAR 1978 MILITARY PROCUREMENT HEARINGS BEFORE SENATE ARMED SERVICES COMMITTEE, MARCH 11, 1977, p. 2378
[Supplied by Senator William Scott]
Senator SCOTT. Let me turn just briefly then to another subject. We have been concerned, a number of us, with the Panama Canal. Do you have any views as to the importance of the Panama Canal, staying away from the political questions but if the canal was not under our control, if the Panama Canal was not under the control of the United States, and I realize I am speaking of an area that is no part of your command but it is pretty close to it and undoubtedly it would have an effect-but if it was not under the control of the U.S. Government, can you see possible adverse effects to your command in the Pacific?
Admiral WEISNER. I can see adverse effects, Senator Scott. It takes considerable time to move items by sea from the east coast to the Pacific. Without the Panama Canal, you are adding 3 weeks' time in shipping critical items such as ammunition from an east coast port rather than from a west coast port.
Senator ScoтT. Would you, aside from the specifics of the time element, see a need for an increase in the naval strengths of this country if we did not have control of the Panama Canal?
Admiral WEISNER. Yes; we would have to put these critical items being shipped by sea over a greater area.
Senator SCOTT. To acomplish the same purposes you need a larger Navy? Admiral WEISNER. That is right.
Senator SCOTT. Now, what ships, naval ships, cannot negotiate through the canal?
Admiral WEISNER. The large tankers cannot.
Senator SCOTT. Can our aircraft carriers?
Admiral WEISNER. The aircraft carriers cannot.
Senator SCOTT. I have talked about the Panama Canal, Mr. Chairman, a bit and the adverse effect that it would have if it was not under our control. That was the last thing that we discussed.
Senator SCOTT. He was asked for his views as to the importance of the Panama Canal; whether there would be any adverse effect on his command if the Canal were not under the control of the United States. Let me quote his response:
I can see adverse effects, Senator Scott. It takes considerable time to move items by sea from the East Coast to the Pacific. Without the Panama Canal, you are adding 3 weeks' time in shipping critical items, such as ammunition, from an East Coast port rather than from a West Coast port.
Then I asked the Admiral if he would see a need for an increase in our naval strength if we did not control the Panama Canal. Admiral Weisner responded:
Yes, we would have to put these critical items being shipped by sea over a greater area.
This, of course, is a response of an active duty military commander before the Singlaub affair.
Returning briefly, Mr. Chairman, to the conclusion of the testimony by Admiral Moorer before the Judiciary Committee, he states, and I quote:
Anyone in this country who thinks that Soviet Russia is not staring down the throat of the Panama Canal is very naive, and I think it says something to note that the Soviets understand the importance of the Panama Canal apparently far more than many in our own country.
On September 8 of this year, retired Admiral John S. McCain, Jr., also testified before our Subcommittee on Separation of Powers, and I am quoting this four-star Admiral:
From my combined military experience, which includes Europe, Asia, the Pacific, the Caribbean, and the United Nations, it is my conviction that U.S. interests are best served by keeping the Canal, by retaining undiluted sovereignty over the U.S. Canal Zone.
He added, and again I quote:
Finally, I would like to re-emphasize the importance of the June 8, 1977, letter of the four greatly distinguished Chiefs of Naval Operations to the President that was quoted in the testimony of Admiral Moorer. Their conclusions reflect a vast background, including combat experience, and are more pertinent today than ever. Retired military officers are completely free to voice their innermost convictions. Active duty officers have an obligation to support the policies of their Commander in Chief.
I would hope, Mr. Chairman, that this committee will call more military officers in whom you have confidence and who are free of constraints from their Commander in Chief and ask their candid, personal opinions on the dangers of our Government parting with title to the canal and the gradual turnover of full control to Panama.
LATIN AMERICAN VIEW CONCERNING CANAL TRANSFER
Mr. Chairman, we sometimes hear that Latin America favors the transfer of title and control of the Canal Zone from the United States to Panama, but I have taken two trips to Latin America this year and have had the opportunity to talk with chief executives and other principal officials of a number of Latin American countries, with Embassy personnel, with intelligence officers, with American citizens, as well as foreign nationals within the countries visited.
In Colombia I learned that because of kinship with an adjoining Latin country, Colombia officials do favor the transfer of the canal, but are very concerned about the contemplated increase in tolls, stating that the only practical way to transfer material from one part of Colombia to another is through the canal.
Brazilian officials didn't seem to have any real concern regarding the proposed treaty, referring to it as a matter between the United States and Panama. Perhaps this is because Brazil fronts on the eastern coast of the South American continent and is not among the prime users of the canal.
In Argentina, officials indicated that they did not make extensive use of the canal, but expressed fear that it might come under Communist control.
Chilean officials were even more concerned of the possibility of Communist influence or control of the canal, indicating that 95 percent of their commerce used the canal and that they could not afford an in