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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 of Europe and here where that system prefrom the context, because, taking the whole vails. We need not consider whether the finding, it seems to us clear that the pur-community was derived from the Roman pose of the court was as stated. We say law, from an express provision of the early also it results from the other findings, be- Saxon law, or from the ancient customary cause the facts found as to the sum of the law of the continent. For, however derived, property owned by the husband at the time the very foundation of the community and of the marriage and the sum possessed by its efficacious existence depends on the powhim at the time of the divorce exclude, byer of the husband, during the marriage, necessary implication, the possession by the over the community, and his right, in the husband of the $22,000.
absence of fraud or express legislative reIt is provided in both the Code of 1889 striction, to deal with the community and (article 1412) and the Code of 1902 (1327) | its assets as the owner thereof. The purthe husband “is the administrator of the pose of the community, as expounded from conjugal partnership.” By the first of these the earliest times, whilst securing to the 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 equal portion of the net results of the comauthority to sell and encumber, not only mon industry, common economy, and comall the movable, but also the immovable, mon sacrifice, was yet, as a matter of neproperty of the community. In the second cessity, during the existence of the commuCode, however (§ 1328), the power of the nity, not to render the community inept husband to sell or encumber the immovable and valueless to both parties by weakening property is not given, except a contract to the marital power of the husband as to his that effect is made with the consent of the expenditures and contracts, so as to cause wife. And by both Codes all contracts of him to be a mere limited and consequently the husband in violation of definite provisions inefficient agent. See a very full citation of the Code or in fraud of the rights of the of authority in Journal du Palais Reperwife are made null and void against the toire, verbo, "Communauté,” pp. 739, 741 et wife or her heirs. Code of 1889, art. 1413; seq. 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 the right of the wife to the common propwhere the community system prevails. erty during the existence of the marriage, Code Napoleon, art. 1421; Louisiana Code, and the scope of the power of the husband art. 2404. The question, therefore, is this: during the same period. In speaking on Is the power of the husband, as the head the nature of the right of the wife, Tropand master and administrator of the com- long says: munity, in its nature so restricted that, in “The rights of the wife are dormant durthe absence of express limitation, he can, ing the marriage, because the husband is after the dissolution of the community, be charged to watch over and conduct the afcalled to account and compelled to return fairs of the conjugal society. But this to the community money which he has ac- right, which is inert as long as the husband tually expended during the existence of the is at the head of the affairs of the communicommunity, because, in the judgment of a ty, becomes active when the marital authorcourt, such expenses may be deemed to have ity ceases to exist. The wife is like a sibeen not suitable to his situation in life, ex- lent partner, whose rights arise and reveal travagant, or even reckless? To answer this themselves when the partnership ceases." credible witness, while, if true, it could hence not a proper charge against the prophave been easily proven by the testimony oferty of the marital partnership. some of the physicians who attended him, It seems that twenty-five thousand doland who must have had full knowledge of lars ($25,000.00) would have been a liberal his condition during these times. But even expenditure under the circumstances for a granting that the journeys were necessary man in defendant Garrozi's condition of to defendant's health, the court is forced life. to the conclusion, either that said defend- The court therefore concludes that twenant has exaggerated the amounts expended ty-two thousand dollars ($22,000.00) of the or that such extravagant expenditures were amount should be charged against the sepnot either necessary or reasonable, and I arate property of defendant Garrozi.
2 Troplong, Contrat de Mariage, p. 136, No. ter of the community, given to the husband, 855.
—this power, which seems like unto an absoUnder the law of France prior to the Na- lute sovereignty,--exists as well in the repoleon Code the extent of the power of the lations of the spouses between themselves husband as to the community property was as in their dealings between third parties. so great that it was considered in theory In effect, the husband can dissipate the that the rights of the wife in or to the com- goods of the community; he can lose, demunity were not merely dormant during stroy, break, and dilapidate. Maritus pothe marriage, but had no existence what. test perdere, dissipare, abuti; this is an eleever. In other words, the doctrine was up- mentary axiom of the Palace (of Justice). held that the wife, during the existence of The wife has no right to call the husband the community, had but a mere hope or ex- to account, no damage to obtain for his pectancy, and hence no interest whatever acts. Hence it is true, indeed, that the husin the property or goods of the community band is more than an administrator: he is until the community was dissolved. Du- an administrator com libera.” Ibid. p. 138, moulin, Sur Part. 25, Cout. de Paris. And No. 158. from this arose the expression that the com- See, to the same effect, the copious colmunity was a partnership which only com- lection of authority found under article menced on its termination. As the result, 1421 of the Code Napoleon, in the Fuzierhowever, of the right conferred upon the Herman edition of that Code, supra. wife by some of the customs of France be. That there is a substantial similarity before the Code Napoleon, and also express-tween the law of the community under the ly given by that Code (Code. Napoleon, Napoleon Code and the law on the same 1443 et seq.), to procure a decree dissolving subject of Spain, prior to the Civil Code, the community when the affairs of the hus- and as now existing under that and the band were in such disorder as to entail risk Code of Porto Rico, was conceded in the arupon the wife, it is the generally accepted gument of the appellee. Indeed, that ardoctrine under the Napoleon Code that the gument refers to and rests on some of the wife's interest in the community prior to provisions of the Napoleon Code. Besides, the dissolution is subsisting, though dor- when it is considered that the ancient Spanmant. But this implies no limit on the ish law, and that law as formulated in the power of the husband whilst the communi. Code of 1889 or in the Porto Rican Code of ty exists. In other words, although the 1902, confers no authority upon the wife to right to a separation of property arises obtain a judicial dissolution of the commufrom the reckless conduct of the husband, nity merely because of the disorder of the thus affording a means of guarding against husband's affairs, it follows that the power the consequences of such conduct in the of the husband under the Spanish system is future, the right to ask a separation does in principle more extensive than it is unnot give rise to the inference that the hus- der the Code Napoleon and the law of the band, after the dissolution of the communi- countries which have followed that Code. ty, may be held to account for money ex. The practical identity of the husband's genpended by him during the community be- eral authority, as head and master of the cause of reckless or extravagant conduct. community, under the law of Louisiana, the Speaking on this subject, Rodiere and Pont Code Napoleon, and the Spanish law, was (Traité du Contrat de Mariage) say (p. 596, clearly expounded by the supreme court of No. 657):
Louisiana, in Guice v. Lawrence, 2 La. Ann. “The husband can then sell [the immov. 226, as follows: able property of the community] by oner
"The laws of Louisiana have never recous title; he has in this respect an absolute ognized a title in the wife during marriage power, and if, in disregard of the confidence to one half of the acquêts and gains. The which the law reposes in him, the husband, rule of the Spanish law on that subject in disposing of the property, is impelled by is laid down by Febrero with his usual prethe wish to indulge extravagant tastes or to cision. The ownership of the wife, says provide for reckless dissipation, and not by that author, is revocable and fictitious dur. the purpose of protecting the rights of the ing marriage. As long as the husband lives wife, the latter, even under these circum- and the marriage is not dissolved, the wife stances, has no recourse but to obtain a ju- must not say that she has gananciales, nor dicial termination of the community." is she to prevent the husband from using Referring to the power of the husband them, under the prete
them, under the pretext that the law gives over the community, Troplong says:
her one half. But, soluto matrimonio, she “This power of the husband, which ef- became irrevocably the owner of one undifaces the personality of the wife, and which vided half, in the manner provided by law is manifested by the name of lord and mas- 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 admin- . 2d, bk. Ist, chap. 4, 1 l, nos. 29 and 30; ister the wife's share of the community rePothier, Communauté, p. 35 and following; mains whilst her interest in future acquets 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.
ued. But whilst this reduction may point “The provisions of our Code on the same to the want of coherency in the proposition, subject are the embodiment of those of the it is no reason why the Code should not be Spanish law, without any change. The enforced, if so it is plainly written. We do husband is head and master of the commu- not stop to analyze the texts of the Code of nity, and has power to alienate the immova- 1889, relied on, for we think they are not bles which compose it by an encumbered controlling, even if they have the peculiar title, without the consent or permission of meaning contended for. We so conclude behis wife. Civil Code, art. 2373."
cause of a change made by the Code of 1902. True it is that in the Porto Rican Code As we have already said, we are of the of 1902 there was inserted a provision, pre- opinion that that Code was in effect at the viously commented on (§ 1328), limiting the date of the rendering of the divorce decree. power of the husband to dispose of the Now, that Code not only eliminated the proimmovable property of the community with visions of article 73 of the Code of 1889, reout the consent of the wife. But this ex- lied on, but substituted a wholly different press limitation as to one particular class provision, directly repugnant to the conof property, by inverse reasoning, is a re- tention we are considering. The provision affirmance of the power of the husband as referred to is 173 of the Code of 1902, head and master of the community in all saying: “A divorce carries with it a comother respects. The contention that be- plete dissolution of all matrimonial ties cause both by the Code of 1889 and of 1902 and the division of all property and effects acts done by the husband as head and mas-between the parties to the marriage.” The ter of the community in fraud of the wife argument made in the brief of one of the shall be void, therefore the expenses of the counsel that, even although the wife was enhusband made during the community are titled to a liquidation of the community subject to be reviewed on the dissolution and to a decree for her share, the court beof the community because of their unrea- low erred in giving a money judgment in sonable character, is without merit. The her favor, because in any event it could fraud referred to of necessity relates to acts only have lawfully awarded an aliquot share done by the husband beyond his lawful au- of the community property subject to be thority, or which, if within his authority, subsequently realized by a partition in kind have been done for the purpose of enrich- or by licitation (sale), is unsound. As to ing himself or his separate estate or some the merit of the contention, if any, as a third person, and which, therefore, whilst general proposition, we are not called upon seemingly acts of community administra- in this case to express an opinion. We say tion, are really not of that character. this because, as a necessary result of the
3. The contention that the wife, even aft- findings below, all the property either beter the dissolution of the marriage, was longed to the husband at the date of the without power to obtain the liquidation of marriage or was afterwards acquired by him the community and a payment to her of as a reinvestment of funds derived from her share thereof, is based upon what is such property owned by him at the marasserted to be the correct interpretation of riage. It follows, therefore, that the rights articles 73, 1733, 1434, and 1435 of the Code of the wife arose simply either from an inof 1889. By these articles, it is insisted, creased value of property or assets brought where the dissolution of the marriage has by the husband into marriage, or as a rebeen decreed because of the fault of one of sult of the falling into the community of the parties, the separation of property does the revenues of the property of the husnot follow as a legal right in favor of the band. Under these circumstances we think party for whose wrong conduct the divorce the decree below was right. has been decreed, and may only be allowed 4. The amount of the decree for alimony by a court at the request or option of the pendente lite and for expenses incurred by one in whose favor the decree was rendered. the wife in the divorce suit had been sancAnd it is, moreover, insisted that if the tioned by the local court and were binding divorce has been rendered in favor of a upon the husband. We see no reason, therehusband and against a wife for her fault, fore, 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. Delow it, and our own researches have enabled
eided January 7, 1907. us to discover no sanction for such an award. It follows that whilst the court below APPEAL from the Court of Appeals of
the District of Columbia to review a was right in allowing the wife the sum of decree which affirmed a decree of the Su$2,750 as her share of the acquêts and gains preme Court of that District, sustaining a of the community as established by the find- demurrer to, and dismissing, a bill to reings of fact, the court was wrong in al- strain the Secretary of the Treasury from lowing the $22,000, and the $1,500 attorney's paying out money for the construction of fee. The decree below must therefore be the Panama canal, from borrowing money reversed and the cause be remanded with for that purpose, and from issuing bonds of directions to enter a decree for the $2,750 the United States therefor. Affirmed. and the alimony and expenses incurred in See same case below, 25 App. D. C. 510. the divorce suit with the approval of the court as previously allowed, but rejecting
Statement by Mr. Justice Brewer: the claim for $22,000 and $1,500, the costs
In a general way it may be said that of this court to be borne by the appellee and this is a suit brought in the supreme court those of the court below by the appellants. of the District of Columbia by the appelReversed and remanded.
lant, alleging himself to be a citizen of Illinois and the owner of property subject
to taxation by the United States, to reWARREN B. WILSON, Appt.,
strain the Secretary of the Treasury from
paying out money in the purchase of propLESLIE M. SHAW, Secretary of the Treas.erty for the construction of a canal at Panury.
ama, 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- 1707), providing for the acquisition of propmian or Panama canal zone was not acquired as provided in the act of June 23. erty and rights from Colombia and the ca1902 (32 Stat. at L. 481, chap. 1302, U. S. nal company, and the construction and operComp. Stat. Supp. 1905, p. 707), by treaty ation of the canal and the Panama railroad. with the Republic of Colombia.
The Republic of Panama and the New PanTreaty-acquisition of territory by.
ama 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 Panama canal zone-title of United States.demurrer to the bill was sustained, and the
3. The title of the United States to bill dismissed. This decree was affirmed by the Isthmian or Panama canal zone under the court of appeals, from whose decision the treaty of November 18, 1903 (33 Stat. this appeal was taken. at L. 2234), with the Republic of Panama, is no less perfect because of the omission
Mr. Warren B. Wilson, in propria perfrom that treaty of some of the technical terms used in ordinary conveyances of real sona, for appellant. estate.
Solicitor General Hoyt, Assistant AttorPanama canal zone-title of United States. ney General Russell, and Mr. Glenn E. Hus
4. Failure to define the exact boundary ted for appellee. of the Isthmian or Panama canal zone in the treaty of November 18, 1903, with the Mr. Justice Brewer delivered the opinion Republic of Panama, does not affect the ti-of the court: tle of the United States, where the descrip
If the bill was only to restrain the Secretion is sufficient for identification, and the tary of the Treasury from paying the speboundaries have been practically identified by the concurrent action of the two nations cific sums named therein, to wit, $40,000,alone interested.
000 to the Panama Canal Company, and
$10,000,000 to the Republic of Panama, it Panama canal--power of Congress to con
would be sufficient to note the fact, of which struct.
5. Congress has power to construct the we may take judicial notice, that those payPanama canal in the territory acquired by I ments 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 gov. S. 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.
*Ed, Note.-For cases in point, see vol. 45, Cent. Dig. Territories, § 2.
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, a 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 govof other countries, for many years.
Twoernment 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. Conforts 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 power ed States, 137 U. S. 202, 34 L. ed. 621, 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, Many objections may be raised to the 36 L. ed. 232, 240, 242, 12 Sup. Ct. Rep. 453. bill. Among them are these: Does plain- It is too late in the history of the Unittiff show sufficient pecuniary interest in the ed States to question the right of acquir. subject-matter? Is not the suit really one ing territory by treaty. Other objections are