which was the will of the testator, if interpreted with the prudence and patriotism necessitated by the actual condition of affairs. (No. 15, Exhibit "A," pp. 19 and 20.) It seems that the purpose to which this letter referred was the defense of the integrity of the national territory. §33. Therefore, if the Government, in order to obtain the resources which it needed, realized upon the saleable properties of the fund less than their real value, it does not seem just to burden the fund with the consequent loss; but neither would it be just to hold the Government responsible for properties from which it was not able to derive any benefit because they had no cash value. 34. Even the American commissioner has recognized this principle of justice and equity in his opinion in favor of the claimants. "It will be seen," says he, "that I take no account of the estate of Ciénega del Pastor because it was attached and held by Sr. Jauregui, and there is no evidence in this record that the Government ever obtained the property or derived any profit from it." $35. Thus, therefore, the decree of October 24 ought to be interpreted in such a manner that by it the Pious Fund should not suffer any loss nor that the Mexican treasury should feel any burden. The properties of that fund ought to be worth the same after the decree as they were before it no more nor less. §36. In order that this might be so, the same decree adopted the most just method which could be adopted to determine the cash value of these properties. § 37. Considering that 6 per cent would have to be paid upon such value, this value could not be other than what the properties represented by their proceeds capitalized at 6 per cent. For example, the estates of Santa Lugarda and its annexes were mortgaged to the fund for $42,000 at 5 per cent per annum. If the Government should have been obliged to pay 6 per cent upon the same capital, there would have resulted a gain to the fund and an unjust loss to the treasury of $420 per annum. §38. But in conformity with the decree it could not be so, because the two following operations would have to take place: First, $42,000 at 5 per cent produce $2,100 annually; second, $2,100 interest at 6 per cent represents $35,000. Result: The public treasury would acknowledge an indebtedness in favor of the fund of $35,000 at 6 per cent, in lieu of $12,000 at 5 per cent, the fund receiving, therefore, the same amount as before, no more, no less." $39. For the computation of values upon this basis, established by this decree, there is a necessary condition that the properties to which it refers should have an annual income, because the only thing which the Government promised to do was to see to it that these proceed, were not less than those which the fund received previous to the decrees and not to give it those which it did not have. § 40. The advantage for the fund was to consist in not incurring any expense of administration, and for the Government in making use of the proceeds of the sale for its momentary necessities. a In the brief history of the fund, presented by the claimants on page 5, the following is said: "On October 24 another decree was issued by which it was ordered that the properties belonging to said fund should be sold for the sum which their income represents (capitalized at the rate of 6 per cent); that the products of this sale be incorporated into the public treasury, and that an obligation to pay an interest of 6 per cent upon the above-mentioned capital be recognized on the part of the Government." C. § 41. Therefore, it follows that in order to collect the interest accrued by virtue of the decree of October, 1842, the claimants ought to have proved, not what the nominal value of the properties of the fund was, but what was the total produced by the sales made in conformity with said decree. § 42. When its 3rd article pledged the revenue from tobacco "for the payment of the interest corresponding to the capital of the Pious Fund of the Californias," it undoubtedly referred to the capital which would bring in an income in accordance with said decree, that is to say, to the capital produced from the sales of the properties which at the time produced annual incomes, estimating its value by that which corresponds to said products capitalized at 6 per cent. §43. To interpret that article without relation to the preceding one is contrary to the principles of equity, which does not permit one party to better his condition to the detriment of the other. "Natura non partitur aliquem locupletio rem fieri cum alterius jactura." (L. 206, de Reg. jus.) § 44. To condemn the Government of Mexico to pay interest on nominal values and even upon doubtful assets, which had no value and which produced nothing at the time in question, is clearly to make the fund of the missions richer than it then was at an enormous cost to said Government. § 45. A court of equity, such as is this commission, can not proceed against the fundamental principle of natural equity. A learned judge can not interpret a part of an instrument without reference to its object and to the fundamental idea of its text. $46. The first steps toward ascertaining the obligations contracted by the Government of Mexico in virtue of the aforesaid decree must be, therefore, to determine the cash value of the properties belonging to the fund of the missions of the Californias by the amount represented by their annual proceeds capitalized at 6 per cent. § 47. In accordance with the detailed inventory delivered by Señor Ramirez, attorney for the bishop of Californias, to the administrator of the fund on the 28th of February, 1842, in consequence of the decree of the 8th of the same month and year (eight months before the 24th of October), the following settlement may be proposed: PROPERTY HELD IN EMPHYTEUSIS. Interest. Capital. The fund received in this manner by the disposition made of the houses Nos. 11 and 12 Vergara street and of an outbuilding in the Betlemitas alley, $2,625 annually, which represents, at 6 per cent, $43,750 CITY PROPERTIES." The first mentioned in the inventory is the estate Ciénaga del Pastor, whose value is not to be taken into account for the reason set forth in the opinion of the American Commission. (§ 34.) The estate San Pedro de Ybarra was rented for $2,000 annually, which represents, at 6 per cent, a capital of $33,333 « This undoubtedly should be country properties.-Translator. The estates Custodio, San Agustin de los Amoles, and out- .$12, 705.00 $211,750.00 2,100.00 35,000.00 $19,430.00 $323,833.33 § 48. The Pious Fund owned no other properties besides those mentioned which actually yielded an annual income, and, therefore, according to the decree of October 24, 1842, the public treasury of Mexico only acknowledged itself indebted to said fund in the sum of $323,833.334," which at an interest of 6 per cent would produce annually $19,430. § 49. Therefore, according to this decree, there corresponds to the church claimant an annuity of but $9,715. § 50. But it will be said that no matter how little the claims of the Pious Fund against private individuals may be worth, it was not just that the fund be deprived of their value, whatever it might be, and that they be incorporated into the national treasury of Mexico, the former losing forever all right to receive any revenue therefrom. § 51. Certainly it was not the object of the decree to confiscate the assets of the Pious Fund; and inasmuch as equity does not permit of the improvement of the condition of this fund, neither does it permit of its deterioration. § 52. It is necessary therefore, in order to proceed justly and equitably, to find a means to avoid both of these extremes, which are equally opposed to natural equity. § 53. It would be as unjust to require of the Mexican Government the payment of interest upon capitals which were not yielding any when they were incorporated into the national treasury and upon debts which could not be collected as it would be to declare these capitals and these debts totally lost to the fund. 54. In order to proceed justly it is necessary to examine one by one the sums incorporated into the treasury of Mexico, bearing in mind that the meaning of the decree of incorporation was neither to decrease nor increase the amount of the fund, but simply to do away with the expense of administration and to afford resources to the Government. § 55. If the object of the decree had been to give to the fund more than it had had, to guarantee all debts in its favor, however irrecoverable they might be, and to tax the national treasury with the payment of interest upon amounts which previously yielded nothing, and at a greater rate than that apportioned to some of the capitals, the decree would have been enacted simply in these terms: All properties and assets of the Pious Fund of the Californias shall be incorporated into the national treasury, which will recognize an indebtedness at 6 per cent on the entire amount which they now represent. $56. But since, instead of this, the decree directed that the acknowl a According to the report of the Secretary of the Treasury for the year 1843, presented by the claimants, up to December 31 of said year there had been paid into the national treasury on behalf of the Pious Fund of the Californias the sum of $323,274.51; that is to say, very nearly the value of the productive properties above expressed, with the difference of less than $558.82. edgment of an indebtedness at 6 per cent would be only on the amount produced by the sales of real estate and other properties for the sum which their annual proceeds represent at 6 per cent, there is no doubt that there was no intention of taxing the public treasury with the payment of interest upon amounts which had not previously yielded any, nor with an increase of the rate of interest on amounts whose proceeds had been less than 6 per cent. § 57. What, then, will be asked, was the object of article 3 of the decree? It was to insure the payment of interests-referred to in article 2on the properties which constituted the capital of the fund, in conformity with that article-of the properties whose administration was a source of expense to the fund, but which produced regular revenues, because the Mexican treasury was not in so flourishing a condition that it could not only insure the fund against losses, but increase it at its own expense with proceeds which formerly the properties had not yielded to it nor would subsequently yield to the treasury. § 58. Consider, with an unprejudiced mind, how absurd a different interpretation of said article would be. § 59. "The revenue from the tobacco," it says, "is hereby specially pledged for the payment of the interest on the capital of said fund of Californias, and the director of the office (tobacco revenues) will deliver the necessary amount for the fulfillment of the objects for which said fund is intended, without any deduction for costs of administration or for other purposes." § 60. Now, then, why should it be construed that the interest corresponding to the capital of the fund should be 6 per cent of the entire nominal value of the principal and interests and assets of the fund? § 61. Does not the decree immediately before say that only that sum, which its annual proceeds capitalized at 6 per cent would represent, would be acknowledged at 6 per cent as the capital of the fund? Therefore by interests corresponding to the capital of the fund is to be understood those which correspond to 6 per cent on the capital which yielded annual proceeds, said capital being the only one whose administration occasioned expense. Any other interpretation is arbitrary, because it has no foundation either in the letter or in the spirit of the decree, and is contrary to natural equity because it would enrich the fund with serious loss to the Mexican treasury. § 62. The most that can be said with respect to the assets of the fund is that the state of those incorporated into the national treasury will be neither improved nor injured from what it was prior to their incorporation. Let us see, now, what was this condition. § 63. The undersigned, in order that this document may be no longer than necessary, has deemed it advisable to limit his remarks upon these assets to those considered as good by the American commissioner, whose figures the umpire has adopted. § 64. After repeated efforts to solve the problem concerning which of these assets are the ones which are considered to amount to the sum of $72,122, or the ones which have been disallowed to the extent of $16,617, the undersigned has discovered that there has been an error in the arithmetical operations employed. § 65. These amounts could be no others than the following: 2. Dn. Luis Vazquez: Debts of private individuals to the fund taken into consideration. 1. Mortgage upon the estate Santa Lugarda . $42,000.00 $3,000.00 2,275.00 5,275.00 Capital 3. Administratrix of Sra. Huesca.. 4. Dn. Juan de Dios Navarro 5. Admx. of Sr. Velez Escalante 6. Daughters of General Cosio 7. Dn. Manuel Prieto..... 8. Da. Agustina Montenegro 9. Bondsmen of Dn. Ramon Vertiz.. Total.... 9,850.00 13,000.00 33, 782.621 325.00 316 00 193.00 13, 997.00 118,738.62 In order to facilitate the calculation, the five reales, or 62 cents, of the fifth item were taken as a dollar, and by this means the sum obtained was $118,739. § 66. The following were deducted as bad debts: In this manner, then, was charged an additional thousand dollars to the good accounts, failing, however, to deduct an equal amount from the bad ones." § 67. The first of these accounts qualified as good has already been considered by the undersigned among the properties which actually yielded annual proceeds; not, however, at its nominal value, but at the value of the capital represented by its proceeds capitalized at 6 per cent, in accordance with the express provision of the decree of the 24th of October, 1842. (See §§ 37 and 38.) § 68. The second account considered as good was found, according to the inventory of Señor Ramirez, to be in the following condition: Don Luis Vazquez, upon his estate Minyo, situated in the department of Yxmiquilpan, which was sold at public auction in the year 1826, acknowledges in favor of the Missions $3,000 at 5 per cent, to which amount the $20,000 with which it was encumbered in 1872 (I think this should be 1827, S. Doyle) had been reduced. It appears, from what can be gathered, that the interest was paid only the first year, and that accrued from 1827 to February 28, 1842, is still due, amounting to $2,275. § 69. That is to say that this capital remained sixteen years in an a This arithmetical error implies a charge of $1,260 upon Mexico from the point of view of the decision rendered; that is to say, for interest at 6 per cent for twenty-one years. |