commission might have reasonably found that this company was the assignee of the contract between Cheery and Cauca Company by which Cheery was to build the road and receive the Cauca Company's stock and bonds. Therefore, the work done by the Construction Company had to be paid for by the Cauca Company, and the result of its work was the railroad which the company surrendered. Under such circumstances we can listen to no hair-splitting as to whether the work done upon the road by the Construction Company can be called the Cauca Company's obras y trabajos. NORTHERN PACIFIC RAILWAY COMPANY V. AMERICAN TRADING COMPANY 195 U. S. Rep. Ed., 439; s. c. 49 L. Ed. 269 This case involved the question of contraband of war as a defense to an action against a common carrier for damages for breach of contract to transport. A special agreement was made for the transportation of a quantity of lead from New York to Yokohama over intervening routes from New York to Tacoma and by the steamship of the Northern Pacific Steamship Company, due to leave Tacoma October 30, 1894. After the contract and payment of transportation charges were made, the defendant company declined to ship the lead upon the ground that it might be contraband of war. The trading company then notified the railway company that they would hold the company responsible for any loss from its failure to fulfil the contract. It was well understood by the parties before the contract was made that the lead might be considered as contraband of war in view of the war then existing between China and Japan. The deputy collector of the port refused to grant clearance papers to the ship while the lead was on board, which was accordingly unshipped; and this was also urged as a defense by the railway company on the ground that it made the performance of the contract both impossible and unlawful. The court held: The contract was not unlawful when made. It may be assumed that the lead was contraband of war; but that fact did not render the contract of transportion illegal nor absolve the carrier from fulfilling. It is legal to export articles which are contraband of war; but the articles and the ship which carries them are subject to the risk of capture and forfeiture. Neither any law of the United States, nor any provision of international law, was violated by the making of this contract, nor by an attempt to export the lead pursuant to its provisions. The court held that the mistaken action of the deputy collector in refusing to grant the clearance was an undoubted violation of his duty; that his refusal constituted no defense to the action on the contract, which was lawful when made and had not become unlawful by any subsequent act of Congress. It cannot be affirmed that such possible refusal was not within the contemplation of the contracting parties when the contract was made. Many causes, it was known, might obstruct the transportation of articles contraband of war. This particular form of impediment may not have been actually in the minds of the parties to the contract, but there was, as the agreed facts show, present to their minds the fact that there might be trouble in procuring the transportation of the lead because of its character as contraband of war, and in the light of those facts the contract was made, and in substance, ratified after it was made. The railway receivers took the risk of this, as of other obstructions, in making the contract, and they ought to be held to it. The plaintiff sued to recover the difference between the price which the vendor would have received for the lead if the contract of transportation had been performed and the price which the trading company afterward sold it for and which was the best obtainable at the time of the sale. The court held that the objections made to the recovery were untenable. MISSOURI V. ILLINOIS 200 U. S., 496 The complainant state brought this suit against the defendant state for an injunction. It involved the right of the state of Illinois and the sanitary district of Chicago to discharge the sewage of Chicago through an artificial channel into the Des Plaines river, and thence, through a tributary stream, into the Mississippi river. The decision finally turned on the question of fact whether the discharge of the sewage was in the nature of a nuisance, polluting the waters, and rendering them injurious for the uses of the people of the cities and towns of Missouri. The court decided that: Our conclusion upon the present evidence is that the case proved falls so far below the allegations of the bill that it is not brought within the principles heretofore established in the cause. The bill was by the court dismissed without prejudice. Just as the JOURNAL goes to press, a case of great importance and far-reaching in its facts, and involving questions of magnitude, both of constitutional and national law has been argued before the Supreme Court of the United States. We refer to the case of Kansas v. Colorado, involving the use of and control of waters of the Arkansas river, which to a limited extent (as to the jurisdiction of the court) was passed on in 1902 (185 U. S. 125). The case has now been argued on the merits. The court extended the usual four hours to twelve hours; and the interests of the various parties were argued by numerous and able counsel, including the attorneys-general of Kansas and Colorado and the solicitor-general of the United States. The grievance of Kansas against Colorado is that Colorado claims the right to impound and use all the waters of the Arkansas river, and that it actually does use all the water; that this use of the water by Colorado has dried up the stream, including the underflow through a large part of Kansas to the great damage of its riparian owners. Kansas claims that it became a state long prior to the organization of Colorado, and became vested with riparian rights along the river which cannot be taken from it by a state, whose rights are subsequent in point of time. Colorado maintains that Kansas has no right of action in the absence of injury inflicted or threatened; that the owners of land in Kansas bordering on the river have no rights which Kansas can assert as parens patriæ; that under the common law doctrine of riparian rights the inhabitants of lands along the upper reaches of the Arkansas river in Colorado have a right ex jure naturæ to the beneficial use of its water to the full extent of their necessities; that irrigation of riparian lands is a right of the common law, which permits the reasonable use without regard to the effect that such use may have in a case of a deficiency upon proprietors lower down the river. In arid lands the irrigation of riparian lands is a necessary use, which gives the upper riparian proprietors an absolute right only limited by their necessities; the doctrines of priority of appropriation for beneficial uses of the water of a river is a doctrine of necessity in an arid country and all settlers on an interstate navigable stream take their rights subject to the rights of the upper riparian proprietors. In the United States a state has exclusive control of its own non-navigable waters within its own territory and may make and enforce such laws in relation thereto as the necessities of its own people require, and this power cannot be taken from it except by amendment of the Constitution. The United States intervened in the controversy, because of its paramount interest in irrigation as affecting vast tracts of the public lands, because of the federal policy and laws on the subject, and because, as parens patriæ, the government represents states and individuals who are vitally affected by the issues and are not before the court. If the claim of Kansas based on the common law rule of undiminished flow of waters prevails, or if the claim of Colorado that because of its sovereignty it can wholly exhaust the flow for irrigation prevails, the government cannot carry out the scheme of the reclamation act, which necessarily contemplates a national supervision, regulation and distribution of the waters of interstate streams for beneficial use in irrigation. How can the government thus deal with a matter of internal regulation apparently within the exclusive and reserved competence of the states? Even if there is no such express enumerated power in the Constitutionand the principle of a power necessarily implied in order to effectuate a power granted hardly seems to embrace this case-the power is not denied by the states or to the people. This is necessarily so, as to the the states, because of the very fact of a conflict between two opposed state systems of law. The state acts exclusively in the way of internal police on all persons and things within its borders, but when the effects of state action pass on and affect other states and their inhabitants, then control of the matter is not within state sovereignty. There is a vacancy of interference of power, if the national power as a branch of inherent sovereignty cannot regulate this field and compose such a conflict through its legislation. Some sovereigntym ust control; the state sovereignties cannot; the national sovereign therefore does, and to do so does not interfere with the exclusive right of the state to deal with persons and things and control affairs wholly confined to its borders. WEST RAND CENTRAL GOLD MINING COMPANY, LIMITED V. THE KING Law Reports (1905), 2 King's Bench Division, 391 Petition of Right-International Law-Annexation-Liabilities of Conquered State-Creditor's Rights Against Conqueror-Act of StateJurisdiction of Municipal Courts A petition of right alleged that before the outbreak of war between the late South African Republic and Great Britain, gold, the produce of a mine in the republic owned by the suppliants, had been taken from the suppliants by officials acting on behalf of the government of the republic; that the government by the laws of the republic was liable to return the gold or its value to the suppliants; and that by reason of the conquest and annexation of the territories of the republic by her late majesty the obligation of the government of the republic toward the suppliant in respect of the gold was now binding upon his majesty the king. Held, on demurrer, that the petition disclosed no right on the part of the suppliants which could be enforced against this majesty in any municipal court. There is no principle of international law by which, after annexation of conquered territory, the conquering state becomes liable, in the absence of express stipulation to the contrary, to discharge financial liabilities of the conquered state incurred before the outbreak of war. Petition of Right by the West Rand Central Gold Mining Co., Ltd. 1. The suppliants are a company registered in England under the companies acts and owning and working a gold mine in his majesty's Transvaal colony. 2. On October 2, 1899, 283.90 ounces of gold of the value of £1104, the property of the suppliants, while in transit by train from Johannesburg to Cape Town, were taken possession of at Vereeniging by an official of the late South African Republic, namely, one Hugo, the resident magistrate of the district; the said Hugo was acting upon the instructions of the state attorney of the said republic, who ordered him to take the said gold into safe keeping. 3. The said Hugo gave for the said gold (together with other gold taken at the same time) a receipt of which the following is a translation: VEREENIGING Station. Seized this day by order of the Attorney-General S. A. R. (117) one hundred and seventeen cases containing gold and valuables sealed as usual and conveyed by the mail train from Johannesburg. 2 October, 1899. (Signed) J. S. N. HUGO, Res. J. P. 4. Further, two bars of gold weighing 767.20 ounces of the value of £2700, the property of the suppliants, and being then in the custody of the African Banking Corporation of Johannesburg, were on October 9, 1899, taken possession of upon the premises of the said bank by two officials of the government of the said republic, namely, one Wagner and one Krause. 5. The said two officials gave for the said gold (together with other gold taken at the same time) a sealed receipt of which the following is a translation: Received eight bars of raw gold weighing 2617.23 ounces, value £8996, namely: 1. M. K. C. 2. M. 49 124 730.75 oz. 395.85" African Banking Corporation |