money was expended, and that the legal question in the affirmative would be to deconclusion as to the liability of the hus-stroy the whole fabric of the community band to the community was arrived at be- system as prevailing, not only under the cause it was deemed that the expenditure Spanish and Porto Rican Code, but as obof the money by the husband was unreason-taining in those countries of the continent able and extravagant. We say this results from the context, because, taking the whole finding, it seems to us clear that the purpose of the court was as stated. We say also it results from the other findings, because the facts found as to the sum of the property owned by the husband at the time of the marriage and the sum possessed by him at the time of the divorce exclude, by necessary implication, the possession by the husband of the $22,000. of Europe and here where that system prevails. We need not consider whether the community was derived from the Roman law, from an express provision of the early Saxon law, or from the ancient customary law of the continent. For, however derived, the very foundation of the community and its efficacious existence depends on the power of the husband, during the marriage, over the community, and his right, in the absence of fraud or express legislative restriction, to deal with the community and its assets as the owner thereof. The purpose of the community, as expounded from the earliest times, whilst securing to the equal portion of the net results of the common industry, common economy, and common sacrifice, was yet, as a matter of necessity, during the existence of the community, not to render the community inept and valueless to both parties by weakening the marital power of the husband as to his expenditures and contracts, so as to cause him to be a mere limited and consequently inefficient agent. See a very full citation of authority in Journal du Palais Repertoire, verbo, "Communauté," pp. 739, 741 et seq. It is provided in both the Code of 1889 (article 1412) and the Code of 1902 (§ 1327) the husband "is the administrator of the conjugal partnership." By the first of these Codes (article 1413) this power of the hus-wife, on the dissolution of the marriage, an band was so complete as to endow him with authority to sell and encumber, not only all the movable, but also the immovable, property of the community. In the second Code, however (§ 1328), the power of the husband to sell or encumber the immovable property is not given, except a contract to that effect is made with the consent of the wife. And by both Codes all contracts of the husband in violation of definite provisions of the Code or in fraud of the rights of the wife are made null and void against the wife or her heirs. Code of 1889, art. 1413; Code of 1902, § 1328. The provisions in both In determining the authority of the husCodes making the husband the administra-band as to the common property two contor of the community are here again like siderations are essential: The character of unto those obtaining in other countries where the community system prevails. Code Napoleon, art. 1421; Louisiana Code, art. 2404. The question, therefore, is this: Is the power of the husband, as the head and master and administrator of the community, in its nature so restricted that, in the absence of express limitation, he can, after the dissolution of the community, be called to account and compelled to return to the community money which he has actually expended during the existence of the community, because, in the judgment of a court, such expenses may be deemed to have been not suitable to his situation in life, extravagant, or even reckless? To answer this credible witness, while, if true, it could, have been easily proven by the testimony of some of the physicians who attended him. and who must have had full knowledge of his condition during these times. But even granting that the journeys were necessary to defendant's health, the court is forced to the conclusion, either that said defendant has exaggerated the amounts expended or that such extravagant expenditures were not either necessary or reasonable, or reasonable, and the right of the wife to the common property during the existence of the marriage, and the scope of the power of the husband during the same period. In speaking on the nature of the right of the wife, Troplong says: "The rights of the wife are dormant during the marriage, because the husband is charged to watch over and conduct the affairs of the conjugal society. But this right, which is inert as long as the husband is at the head of the affairs of the community, becomes active when the marital authority ceases to exist. The wife is like a silent partner, whose rights arise and reveal themselves when the partnership ceases." hence not a proper charge against the property of the marital partnership. It seems that twenty-five thousand dollars ($25,000.00) would have been a liberal expenditure under the circumstances for a man in defendant Garrozi's condition of life. The court therefore concludes that twenty-two thousand dollars ($22,000.00) of the amount should be charged against the separate property of defendant Garrozi. 2 Troplong, Contrat de Mariage, p. 136, No. | ter of the community, given to the husband, 855. Under the law of France prior to the Napoleon Code the extent of the power of the husband as to the community property was so great that it was considered in theory that the rights of the wife in or to the community were not merely dormant during the marriage, but had no existence whatever. In other words, the doctrine was upheld that the wife, during the existence of the community, had but a mere hope or expectancy, and hence no interest whatever in the property or goods of the community until the community was dissolved. Dumoulin, Sur Part. 25, Cout. de Paris. And from this arose the expression that the community was a partnership which only commenced on its termination. As the result, however, of the right conferred upon the wife by some of the customs of France before the Code Napoleon, and also expressly given by that Code (Code. Napoleon, 1443 et seq.), to procure a decree dissolving the community when the affairs of the husband were in such disorder as to entail risk upon the wife, it is the generally accepted doctrine under the Napoleon Code that the wife's interest in the community prior to the dissolution is subsisting, though dorriant. But this implies no limit on the power of the husband whilst the community exists. In other words, although the right to a separation of property arises from the reckless conduct of the husband, thus affording a means of guarding against the consequences of such conduct in the future, the right to ask a separation does not give rise to the inference that the husband, after the dissolution of the community, may be held to account for money expended by him during the community because of reckless or extravagant conduct. Speaking on this subject, Rodiere and Pont (Traité du Contrat de Mariage) say (p. 596, No. 657): "The husband can then sell [the immovable property of the community] by onerous title; he has in this respect an absolute power, and if, in disregard of the confidence which the law reposes in him, the husband, in disposing of the property, is impelled by the wish to indulge extravagant tastes or to provide for reckless dissipation, and not by the purpose of protecting the rights of the wife, the latter, even under these circumstances, has no recourse but to obtain a judicial termination of the community." Referring to the power of the husband over the community, Troplong says: "This power of the husband, which effaces the personality of the wife, and which is manifested by the name of lord and mas -this power, which seems like unto an absolute sovereignty,-exists as well in the relations of the spouses between themselves as in their dealings between third parties. In effect, the husband can dissipate the goods of the community; he can lose, destroy, break, and dilapidate. Maritus potest perdere, dissipare, abuti; this is an elementary axiom of the Palace (of Justice). The wife has no right to call the husband to account, no damage to obtain for his acts. Hence it is true, indeed, that the husband is more than an administrator: he is an administrator com libera." Ibid. p. 138, No. 158. See, to the same effect, the copious collection of authority found under article 1421 of the Code Napoleon, in the FuzierHerman edition of that Code, supra. That there is a substantial similarity between the law of the community under the Napoleon Code and the law on the same subject of Spain, prior to the Civil Code, and as now existing under that and the Code of Porto Rico, was conceded in the argument of the appellee. Indeed, that argument refers to and rests on some of the provisions of the Napoleon Code. Besides, when it is considered that the ancient Spanish law, and that law as formulated in the Code of 1889 or in the Porto Rican Code of 1902, confers no authority upon the wife to obtain a judicial dissolution of the community merely because of the disorder of the husband's affairs, it follows that the power of the husband under the Spanish system is in principle more extensive than it is under the Code Napoleon and the law of the countries which have followed that Code. The practical identity of the husband's general authority, as head and master of the community, under the law of Louisiana, the Code Napoleon, and the Spanish law, was clearly expounded by the supreme court of Louisiana, in Guice v. Lawrence, 2 La. Ann. 226, as follows: "The laws of Louisiana have never recognized a title in the wife during marriage to one half of the acquêts and gains. The rule of the Spanish law on that subject is laid down by Febrero with his usual precision. The ownership of the wife, says that author, is revocable and fictitious during marriage. As long as the husband lives and the marriage is not dissolved, the wife must not say that she has gananciales, nor is she to prevent the husband from using them, under the pretext that the law gives her one half. But, soluto matrimonio, she became irrevocably the owner of one undivided half, in the manner provided by law for ordinary joint ownership. The husband is, during marriage, real y verdadero dueño | and a separation of property has been therede todos, y tiene en el efecto de su dominio after decreed at the instance of the husirrevocable. Febrero, Adic. tomo 1 y 4, pt. band, the power of the husband to admin2d, bk. 1st, chap. 4, ¶ 1, nos. 29 and 30; ister the wife's share of the community rePothier, Communauté, p. 35 and following; mains whilst her interest in future acquêts 12 Toullier, chap. 2, nos. 22 to 31; 14 Du- or gains disappears. But this reduces itranton, Droit Francais, p. 281 and follow- self to the contention that in the case stating; 10 Dalloz, Jurisp. p. 198 and followed the community is dissolved, yet contining. "The provisions of our Code on the same subject are the embodiment of those of the Spanish law, without any change. The husband is head and master of the community, and has power to alienate the immovables which compose it by an encumbered title, without the consent or permission of his wife. Civil Code, art. 2373." True it is that in the Porto Rican Code of 1902 there was inserted a provision, previously commented on (§ 1328), limiting the power of the husband to dispose of the immovable property of the community without the consent of the wife. But this express limitation as to one particular class of property, by inverse reasoning, is a reaffirmance of the power of the husband as head and master of the community in all other respects. The contention that because both by the Code of 1889 and of 1902 acts done by the husband as head and master of the community in fraud of the wife shall be void, therefore the expenses of the husband made during the community are subject to be reviewed on the dissolution of the community because of their unreasonable character, is without merit. The fraud referred to of necessity relates to acts done by the husband beyond his lawful authority, or which, if within his authority, have been done for the purpose of enriching himself or his separate estate or some third person, and which, therefore, whilst seemingly acts of community administration, are really not of that character. 3. The contention that the wife, even aftter the dissolution of the marriage, was without power to obtain the liquidation of the community and a payment to her of her share thereof, is based upon what is asserted to be the correct interpretation of articles 73, 1733, 1434, and 1435 of the Code of 1889. By these articles, it is insisted, where the dissolution of the marriage has been decreed because of the fault of one of the parties, the separation of property does not follow as a legal right in favor of the party for whose wrong conduct the divorce has been decreed, and may only be allowed by a court at the request or option of the one in whose favor the decree was rendered. And it is, moreover, insisted that if the divorce has been rendered in favor of a husband and against a wife for her fault, ued. But whilst this reduction may point to the want of coherency in the proposition, it is no reason why the Code should not be enforced, if so it is plainly written. We do not stop to analyze the texts of the Code of 1889, relied on, for we think they are not controlling, even if they have the peculiar meaning contended for. We so conclude because of a change made by the Code of 1902. As we have already said, we are of the opinion that that Code was in effect at the date of the rendering of the divorce decree. Now, that Code not only eliminated the provisions of article 73 of the Code of 1889, relied on, but substituted a wholly different provision, directly repugnant to the contention we are considering. The provision referred to is § 173 of the Code of 1902, saying: "A divorce carries with it a complete dissolution of all matrimonial ties and the division of all property and effects between the parties to the marriage." The argument made in the brief of one of the counsel that, even although the wife was entitled to a liquidation of the community and to a decree for her share, the court below erred in giving a money judgment in her favor, because in any event it could only have lawfully awarded an aliquot share of the community property subject to be subsequently realized by a partition in kind or by licitation (sale), is unsound. As to the merit of the contention, if any, as a general proposition, we are not called upon in this case to express an opinion. We say this because, as a necessary result of the findings below, all the property either belonged to the husband at the date of the marriage or was afterwards acquired by him as a reinvestment of funds derived from such property owned by him at the marriage. It follows, therefore, that the rights of the wife arose simply either from an increased value of property or assets brought by the husband into marriage, or as a result of the falling into the community of the revenues of the property of the husband. Under these circumstances we think the decree below was right. 4. The amount of the decree for alimony pendente lite and for expenses incurred by the wife in the divorce suit had been sanctioned by the local court and were binding upon the husband. We see no reason, therefore, why the court below should not have allowed those items. So far as the sum of the treaty of November 18, 1903, with the $1,500 for counsel fees in the pending liti- Republic of Panama. gation, which the court allowed as a charge against the husband, we have been referred [No. 43.] to no authority sustaining the right to al- Argued and submitted October 19, 1906. De low it, and our own researches have enabled us to discover no sanction for such an award. It follows that whilst the court below was right in allowing the wife the sum of $2,750 as her share of the acquêts and gains of the community as established by the findings of fact, the court was wrong in allowing the $22,000, and the $1,500 attorney's fee. The decree below must therefore be reversed and the cause be remanded with directions to enter a decree for the $2,750 and the alimony and expenses incurred in the divorce suit with the approval of the court as previously allowed, but rejecting the claim for $22,000 and $1,500, the costs of this court to be borne by the appellee and those of the court below by the appellants. Reversed and remanded. Statement by Mr. Justice Brewer: this is a suit brought in the supreme court In a general way it may be said that of the District of Columbia by the appellant, alleging himself to be a citizen of Illinois and the owner of property subject to taxation by the United States, 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 Panama canal zone-title of United States. making any payments under the act of Con 1. Subsequent ratification by Congress gress, June 28, 1902 (32 Stat. at L. 481, is a sufficient answer to the contention that chap. 1302, U. S. Comp. Stat. Supp. 1905, p. the title of the United States to the Isth-707), providing for the acquisition of prop V. WARREN B. WILSON, Appt., LESLIE M. SHAW, Secretary of the Treas ury. mian or Panama canal zone was not ac- erty 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 2. The United States may acquire ter- parties defendant, but they were not served ritory by treaty.* 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. Mr. Warren B. Wilson, in propria persona, for appellant. Solicitor General Hoyt, Assistant Attorney General Russell, and Mr. Glenn E. Husted for appellee. 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 | against the government, which has not conas this suit is concerned, a moot question. sented to be sued? Is it any more than an Cheong Ah Moy v. United States, 113 U. appeal to the courts for the exercise of govS. 216, 28 L. ed. 983, 5 Sup. Ct. Rep. 431; ernmental powers which belong exclusively Mills v. Green, 159 U. S. 651, 40 L. ed. 293, to Congress? We do not stop to consider 16 Sup. Ct. Rep. 132; American Book Co. these or kindred objections; yet, passing v. Kansas, 193 U. S. 49, 48 L. ed. 613, 24 them in silence must not be taken as even Sup. Ct. Rep. 394; Jones v. Montague, 194 an implied ruling against their sufficiency. U. S. 147, 48 L. ed. 913, 24 Sup. Ct. Rep. We prefer to rest our decision on the gen611. eral scope of the bill. But the bill goes further and seeks to Clearly there is no merit in plaintiff's restrain the Secretary from paying out mon- contentions. That, generally speaking, ey for the construction of the canal, from citizen may be protected against wrongful borrowing money for that purpose and is- acts of the government affecting him or his suing bonds of the United States therefor. property may be conceded. That his remIn other words, the plaintiff invokes the edy is by injunction does not follow. A suit aid of the courts to stop the government of for an injunction is an equitable proceedthe United States from carrying into execu-ing, and the interests of the defendant are tion its declared purpose of constructing to be considered as well as those of the the Panama canal. The magnitude of the plaintiff. Ordinarily it will not be granted plaintiff's demand is somewhat startling. when there is adequate protection at law. The construction of a canal between the In the case at bar it is clear not only that. Atlantic and Pacific somewhere across the plaintiff is not entitled to an injunction, but narrow strip of land which unites the two also that he presents no ground for any recontinents of America has engaged the at- lief. tention, not only of the United States, but He contends that whatever title the gov of other countries, for many years. Two ernment has was not acquired as provided routes, the Nicaraugua and the Panama, in the act of June 28, 1902, by treaty with have been the special objects of considera- the Republic of Colombia. A short but suftion. A company chartered under the laws ficient answer is that subsequent ratification of France undertook the construction of a is equivalent to original authority. The ticanal at Panama. This was done under the tle to what may be called the Isthmian or superintendence and guidance of the famous canal zone, which, at the date of the act, Ferdinand de Lesseps, to whom the world. was in the Republic of Colombia, passed by owes the Suez canal. To tell the story of an act of secession to the newly formed all that was done in respect to the construc- Republic of Panama. The latter was rection of this canal, prior to the active inter- ognized as a nation by the President. A vention of the United States, would take treaty with it, ceding the canal zone, was volumes. It is enough to say that the ef- duly ratified. 33 Stat. at L. 2234. forts of De Lesseps failed. Since then Pan- gress has passed several acts based upon ama has seceded from the Republic of Co- the title of the United States, among then lombia and established a new republic, which one to provide a temporary government (33 has been recognized by other nations. This Stat. at L. 429, chap. 1758, U. S. Comp. Stat. new republic has by treaty granted to the Supp. 1905, p. 711); another, fixing the United States rights, territorial and other- status of merchandise coming into the wise. Acts of Congress have been passed United States from the canal zone (33 Stat. providing for the construction of a canal, at L. 843, chap. 1311, U. S. Comp. Stat. and in many ways the executive and legis- Supp. 1905, p. 394); another, prescribing lative departments of the government have the type of canal (34 Stat. at L. 611, chap. committed the United States to this work, 3597). These show a full ratification by and it is now progressing. For the courts Congress of what has been done by the Exto interfere, and, at the instance of a citi- ecutive. Their concurrent action is concluzen, who does not disclose the amount of sive upon the courts. We have no superhis interest, stay the work of construction vising control over the political branch of by stopping the payment of money from the government in its action within the the Treasury of the United States therefor, limits of the Constitution. Jones v. Unitwould be an exercise of judicial powered States, 137 U. S. 202, 34 L. ed. 691, 11 which, to say the least, is novel and ex- Sup. Ct. Rep. 80, and cases cited in the traordinary. opinion; Re Cooper, 143 U. S. 472, 499, 503, 36 L. ed. 232, 240, 242, 12 Sup. Ct. Rep. 453. 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 Con It is too late in the history of the United States to question the right of acquir ing territory by treaty. Other objections are |