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V.

The proof requires but a few words. It is not concur. When the Constitution gave not denied that the defendants generate in this court original jurisdiction in cases "in their works near the Georgia line large which a state shall be a party,” it was not quantities of sulphur dioxid which becomes intended, I think, to authorize the court to sulphurous acid by its mixture with the air. apply in its behalf any principle or rule of It hardly is denied, and cannot be denied equity that would not be applied, under the with success, that this gas often is car- same facts, in suits wholly between private ried by the wind great distances and over parties. If this were a suit between private great tracts of Georgia land. On the evi- parties, and if, under the evidence, a court of dence the pollution of the air and the magni- equity would not give the plaintiff an intude of that pollution are not open to dis- junction, then it ought not to grant relief, pute. Without any attempt to go into de under like circumstances, to the plaintiff, betails immaterial to the suit, it is proper to cause it happens to be a state, possessing add that we are satisfied, by a preponder- some powers of sovereignty. Georgia is enance of evidence, that the sulphurous fumes titled to the relief sought, not because it is cause and threaten damage on so consider- a state, but because it is a party which has able a scale to the forests and vegetable established its right to such relief by proof. life, if not to health, within the plaintiff The opinion, if I do not mistake its scope, state, as to make out a case within the re- proceeds largely upon the ground that this quirements of Missouri v. Illinois, 200 U. S. court, sitting in this case as a court of equi496, 50 L. ed. 572, 26 Sup. Ct. Rep. 268. ty, owes some special duty to Georgia as a Whether Georgia, by insisting upon this state, although it is a party, while, under claim, is doing more harm than good to her the same facts, it would not owe any such own citizens, is for her to determine. The duty to the plaintiff if an individual. possible disaster to those outside the state must be accepted as a consequence of her standing upon her extreme rights. It is argued that the state has been guilty

UNITED STATES, Appt., of laches. We deem it unnecessary to consider how far such a defense would be avail- LEWIS E. BROWN. (No. 283.) able in a suit of this sort, since, in our opinion, due diligence has been shown. The con.

LEWIS E. BROWN, Appt., ditions have been different until recent years. After the evil had grown greater in UNITED STATES. (No. 284.) 1904 the state brought a bill in this court. The defendants, however, already were aban-Courts-martial—who may sit.

1. An officer of the Regular Army is doning the old method of roasting ore in open heaps and it was hoped that the change within the provisions of U. Š. Rev. Stat. § would stop the trouble. They were ready 959,'that “officers of the Regular Army shall

p. to agree not to return to that method, and, not be competent to sit on courts-martial upon such an agreement being made, the bill to try officers or soldiers of other forces,” was dismissed without prejudice. But the although such officer has been granted an plaintiff now finds, or thinks that it finds, indefinite leave of absence from the Reg. that the tall chimneys in present use cause ular Army in order to enable him to accept the poisonous gases to be carried to greater a commission in the volunteer forces. distances than ever before, and that the Army--pay-discharge. evil has not been helped.

2. The refusal of a certificate of honIf the state of Georgia adheres to its orable discharge to a volunteer officer as of determination, there is no alternative to is the date when his regiment was mustered

out, on the mistaken ground that he had suing an injunction, after allowing a rea- already legally been dishonorably discharged, sonable time to the defendants to complete cannot be regarded as an active retention the structures that they now are building, of such officer in the service, so as to enand the efforts that they are making to title him to pay after that date, in view of stop the fumes. The plaintiff may submit the provision of the act of March 2, 1899 (30 a form of decree on the coming in of this Stat. at L. 977, 981, chap. 352), $ 15, for court in October next.

the mustering out of officers and men of

the Volunteer Army, and of the requireInjunction to issue.

ment of the act of January 12, 1899 (30 Stat.

at L. 784, chap. 46), that, as far as pracMr. Justice Harlan, concurring:

ticable, the discharge of officers and men The state of Georgia is, in my opinion, en should take effect at the muster out of the titled to the general relief sought by its bill, organization to which they belonged. and, therefore, I concur in the result. With Army-extra pay. some things, however, contained in the opin- 3. A volunteer officer who has been fon, or to be implied from its language, I do' given the two months' extra pay for service

V.

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outside the United States allowed by the enable him to accept a commission as lieuact of January 12, 1899, on muster out and tenant colonel, Second United States Volundischarge, is not entitled to the one month's teer Infantry, and that he was serving in extra pay authorized by that act for service the letter capacity when he sat upon the within the United States.

court. It is argued that it always has been

understood that under such circumstances [Nos. 283, 284.]

the position in the volunteer service alone is Submitted April 25, 1907. Decided May 13, to be regarded, that much harm will be done 1907.

if a contrary construction should be adopt

ed now, and that the leave given to ap

Court of Claims to review a judgment sustaining should be construed to carry with an apin part a claim for pay of a volunteer of pointment the same consequences that would ficer after the date on which he was dis- attach to a commission if held by anyone missed from the service by sentence of a else. Act of April 22, 1898, chap. 187, $ 13, court-martial. Affirmed.

30 Stat. at L. 363; act of May 28, 1898, See same case below, 41 Ct. Cl. 275.

chap. 367, § 2, 30 Stat. at L. 421, U. S. The facts are stated in the opinion. Comp. Stat. 1901, p. 881. Assistant Attorney General Van Orsdel

This argument would have great force and Messrs. George B. Davis and Franklyn when it was required, as formerly, only that W. Collins for the United States.

courts-martial for the trial of militia ufMessrs. Lorenzo A. Bailey, W. W. Dudley, ficers "should be composed entirely of militia and L. T. Michener for Brown.

officers.” Act of April 10, 1806, chap. 20, art.

97, 2 Stat. at L. 359, 371. If there was a Mr. Justice Holmes delivered the opinion settled practice of treating these words as of the court:

satisfied if the members of the court were This is a claim for pay as first lieutenant militia officers, whether they also held comof United States Volunteers after February missions in the Regular Army or not, we well 17, 1899, on which date, by the sentence of a might hesitate to overthrow it. But when court-martial, the claimant was dismissed the express prohibition contained in article from the service. The court-martial con- 77 was adopted by the Revised Statutes (U. sisted of five members, the minimum num. S. Comp. Stat. 1901, p. 959), it made the ber by the 75th and 79th articles of war former construction no longer possible. The (Rev. Stat. § 1342, U. S. Comp. Stat. 1901, words of the statute are peremptory and pp. 959, 960), and the president of the court must be obeyed. We do not apprehend any was an officer in the Regular Army. By serious consequences, in view of the date article 77 "officers of the Regular Army shall of the change. But, whatever the consenot be competent to sit on courts-martial to quences, we must accept the plain meaning try the officers or soldiers of other forces, of plain words. It follows that the proceedexcept as provided in article 78.” (Article ings of the court were void and that it is 78 has no bearing on the case.) On this not necessary to mention or consider other ground it is contended that the proceedings objections that were urged. were void. Even if the presence of an in- We are of opinion that the court of claims competent person as a member would not was right also in the allowances made to the have made the proceedings invalid in any claimant. In 1900 the claimant applied for event, in this case without him there would an honorable discharge as of May 25, 1899, have been no court. It has been decided the date when his regiment was mustered that a sentence against a volunteer officer out, but was refused. Of course, the reby a court composed wholly of regular of- fusal of a certificate of honorable discharge ficers is void, and this principle is thought on the ground that the applicant already to govern the present case. McClaughry v. has been dishonorably discharged is not an Deming, 186 U. S. 49, 46 L. ed. 1049, 22 Sup. active retention of the officer in the service. Ct. Rep. 786. On this ground the court of The act of March 2, 1899, chap. 352, $ 15 claims decided that the claimant was en- (30 Stat. at L. 977, 981), provided that the titled to recover up to the time of the final officers and men of the Volunteer Army muster out of his regiment on May 25, 1899, should be mustered out, and, under the act including two months' extra pay under the of January 12, 1899, chap. 46 (30 Stat. at act of January 12, 1899, chap. 46 (30 Stat. L. 781), "as far as practicable," the disat L. 784). 41 Ct. Cl. 275, 515. There are charge of officers and men was to take effect cross appeals to this court.

at the muster out of the organization to The answer of the United States to the which they belonged. It would be monstrous foregoing argument is that the regular of- to hold that it had been determined not to ficer had been granted an indefinite leave of be practical to discharge the claimant when absence from the Regular Army in order to his regiment was mustered out, or that the

V.

circumstances of his case, notwithstanding PPEAL from the Supreme Court of the

A his technical success, afford a ground for a Territory of Hawaii to review a judg. later claim. The claimant was allowed two ment sustaining a demurrer to a petition to months' extra pay for service outside the recover from the territory a sum of money • United States. He was not entitled to one as the alternative of the reconveyance of month's extra pay for service within the certain property conveyed to the Hawaiian United States. See act of May 26, 1900, government for the nonfulfilment of the chap. 586, 31 Stat. at L. 205, 217, U. S. conditions upon which the property was conComp. Stat. 1901, p. 3346. Of course, the veyed. Reversed and remanded for further claim for travel under the same act (31 Stat. proceedings. at L. 210, U. S. Comp. Stat. 1901, p. 841) See same case below, 17 Haw. 285. must fail. The claimant was discharged before that act was passed. Judgment affirmed.

Statement by Mr. Justice McKenna:

This action was brought in the supreme Mr. Justice Moody did not sit and took court of the territory of Hawaii to recover no part in the decision.

from the territory the sum of $15,000 as the alternative of the reconveyance of certain

property conveyed by the American Board FREDERICK J. LOWREY, George P. Cas- of Commissioners of Foreign Missions in

tle, and William 0. Smith, Trustees, 1849 to the Hawaiian government, for the Appts.,

nonfulfilment of the conditions upon which

the property was conveyed. A demurrer was TERRITORY OF HAWAII.

sustained to the petition and thereupon this Extrinsic evidence to explain writing.

appeal was taken. 1. Extrinsic evidence of the circum

The following is an outline of the prinstances preceding the agreement by which cipal facts alleged: the American Board of Commissioners for

The American Board of Commissioners Foreign Missions transferred to the Ha- for Foreign Missions, hereinafter called the waiian government a Protestant mission, and American Board, for many years prior to of the immediate and long-continued prac-1850 had conducted and maintained a Prottice under it, is admissible as an aid to the estant mission in the Hawaiian Islands, interpretation of the condition on which the and, as an essential part of its missionary transfer was made; viz., that the govern work, carried on many schools. Its most ment should continue the same as an institution for the cultivation of sound liter notable educational work was centered in ature and solid science, and should teach no a school established in 1831 at Lahainaluna, religious tenet or doctrine contrary to those on the Island of Maui, where it possessed a theretofore inculcated by the mission, as set large tract of land. This school and the forth in a confession of faith. *

premises occupied by it were set off by the Real property-condition subsequent. chiefs to the protestant mission in 1835. On

2. A mere technical school which ex- the buildings and other improvements many cludes all religious instruction does not sat-thousands of dollars were expended, and isfy the condition on which a Protestant the school had, in 1850, become a most immission was transferred by the American portant factor in the life and progress of Board of Commissioners for Foreign Mis- the Hawaiian people, and was recognized as sions to the Hawaiian government, viz., the leading educational institution in the that the government should continue the same as an institution for the cultivation

kingdom. of sound literature and solid science, and The course of instruction comprised not should teach no religious tenet or doctrine only the usual topics belonging to secular contrary to those theretofore inculcated by learning, but included also direct religious the mission, as set forth in a confession of teaching and training in the doctrines repfaith, where the government knew, when resented by the mission.† accepting the transfer of the mission to its "fostering care and patronage,” that the *Laws of the High School, as Amended Mission was founded to convert the Ha- and Adopted by the Mission, June, 1835. waiians to Christianity and to educate

Chapter I. young men to be Christian ministers, and

Design of the School. for more than than fifty years recognized The design of the High School is, its obligation under the agreement to af- 1. To aid the mission in accomplishing the ford religious instruction in the doctrines great work for which they were sent hithrepresented by the mission.

er; that is, to introduce and perpetuate the

religion of our Lord and Savior Jesus Christ, [No. 195.]

with all its accompanying blessings, civil,

literary, and religious. Argued and submitted March 20, 1907. De- 4. Another object, still more definite and cided May 13, 1907.

of equal or greater importance, is, to edu*Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, $8 2129, 2140.

These facts were established before the by the said government, the whole property board of commissioners to quiet land titles, hereby transferred, hereinbefore specified, toto which the claim of the American Board gether with any additions of improvements, to Lahainaluna, as an established part of its should revert to the said mission.” system, was duly presented and recognized, This offer as made was not accepted by and the board of commissioners adjudged the government, but it instead submitted as follows: "

“Lahainaluna, part 5, section a counter offer to the mission, by which it 2, claim relinquished before the land com- offered to take over the school on the conmission in consequence of an after-arrange- ditions made in the mission's original offer, ment having been entered into with the but “provided that, in case of the nonfulHawaiian government by the mission. Vol. filment on the part of this government of 3 L. C. Award, pp. 143 et seq., upon the final | the conditions specified in the letter of the confirmation which was duly made to the above-named gentlemen, it shall be optional said A. B. C. F. M. all the lands claimed were with this government to allow the instituawarded, 'with the exception of section 2, tion, with all additions and improvements Lahainaluna, which had been withdrawn.'” which may have been made upon the premThe "after-arrangement” referred to in the ises and all rights and privileges connected records of the land commissioners was as therewith, to revert to the said mission, to follows:

be held in behalf of the American Board of "Because of financial stress, and also feel Commissioners for Foreign Missions, or to ing that the school, which had really become pay the sum of $15,000; provided also that, a national institution, should be conducted in case this government shall find it expeby the government at its own expense, in dient to divert this establishment to other April, 1849, the mission, at its general mis purposes than those of education, it shall be sion held in Honolulu, voted as follows: at liberty to do so, on condition that it sus“To make over this seminary to the govern- tain an institution of like character and on ment, it being understood that it is to be similar principles in some other place on the conducted on the same principles as here- island, or pay the sum of $15,000 to said tofore.'

mission in behalf of the Mission Board in An offer was thereupon made to the gov- Boston.” ernment in pursuance to this vote of the A more definite form of the "confession of mission to make over the school to the gov- faith” was substituted and accepted by the ernment on condition that it should be con-government, and the whole arrangement ratitinued at its expense as an institution for fied by the Hawaiian legislature, Law of the cultivation of sound literature and sol-1850 (F. C. 1850) 158, § 1 of Civil Code id science, and further, that it shall not (1859) $ 783, and by the prudential comteach or allow to be taught any religious mittee of the American Board. tenet or doctrine contrary to those hereto- The letter of the mission to the Minister fore inculcated by the mission, a summary of Public Instruction is inserted in the marof which will be found in the confession of gin.† faith here with inclosed, and that, in case of the nonfulfilment or violation of the

1 Exhibit A. conditions upon which this transfer is made

Honolulu, April 25, 1849. cate young men of piety and promising tal- To His Ex. R. Armstrong, Minister of Pubents, with a view to their becoming assist

lic Instruction of the Hawaiian Islands. ant teachers of religion, or fellow laborers

Sir: The undersigned, a committee of the with us in disseminating the gospel of Jesus general meeting of the mission of the A. B. Christ to their dying fellow men.

C. F. M., at the Sandwich Islands, appointed Chapter VII.

in reference to the Mission Seminary at Of the Studies of the School.

Lahainaluna, Maui, beg leave, through your 4. The whole school shall meet between Excellency, to offer a few remarks respectdaylight and sunrise each week day for ing that institution, and make some proprayer, at which one of the instructors shall posals in reference to it to his Majesty's preside; the roll shall be called, absentees government for its consideration. marked and called to an account at least

It is well known to his Majesty, and also once a week.

to most of the members of his government, 6. On the afternoons of Tuesdays and that, in the year 1831, the mission comThursdays each week, or at other times menced the establishment of the institution equivalent, the whole school shall meet for now known as the Mission Seminary of biblical instruction, embracing the inter- Lahainaluna, Maui, to promote the diffusion pretation of Scripture, evidence of Chris- of enlightened literature and Christianity tianity, archæology, and sacred geography. throughout the islands. And Friday afternoon of each week, or time From that period to the present time this equivalent, shall be spent in exhibiting and institution has been unceasingly and anxcorrecting compositions in the Hawaiian lan- iously watched over, cherished, and cared guage and in elocution.

for by the mission. No expense or pains The Hawaiian government at once took Prior to the establishment of the Anpossession of the Lahainaluna seminary and glican Church in Hawaii the board of educarried

on the school exactly as it cation appointed as instructors such persons had been conducted by the Mission, both in as were acceptable to the mission, generally religious instruction and the inculcation of selecting those nominated by the mission. sound literature and solid science.

When the Anglican mission was established For many years after the government had it was proposed that the forms and probtaken over the school the principals of the ably the substance of religious instruction school continued their relations as mission should be changed, and advice was asked of aries of the American Board in their work the Attorney General. His reply reviewed in the school, and continued to make re- the whole arrangement upon which the govports of their educational and religious work ernment received the seminary, and conand instruction in the school to the general cluded as follows: “Should the governmeetings of the mission.

ment not be willing to keep the conditions In 1862 the seminary buildings were as far as I have shown, then the property burned down. Other buildings were built. and improvements must be restored to the The principal, in his report for that year, A. B. C. F. M." 1862–63, reviewing the history of the In 1865 the Hawaiian Gazette, the official school, says:

“The Hawaiian government mouthpiece of the government, declared that has always been a liberal friend and bene- the government had resolved that its supfactor. ... Never in any way have they port should be given to schools irrespective interfered with our manner of instruction, of their religious teaching, but pointed out or in the course of instructions pursued. In that the board of education might be our work we have had all the freedom which chargeable with partiality for supporting a we possibly could have had under the A. state church, inasmuch as it paid large sums B. C. F. MI.” Also, referring to pupils who, to defray the expenses of Lahainaluna, under the religious instruction at the school, where the principles and theology of one became ministers, he says: “While six who particular sect were exclusively taught, alwere connected with it since it has been un- though opposed to the belief of all in comder the care of the Hawaiian government munion with Roman Catholic and Episcopal have been ordained to the same office.churches. coming within its appropriate means or For this reason the mission will be unable power have been spared to promote its use to carry forward its operations with the fulness and secure the objects of its estab- vigor to be desired in all of its departments lishment.

of labor. Some must almost inevitably sufThree missionaries have, for a large por- fer for want of pecuniary means. tion of the time, been devoted to its inter- In view of these facts, and believing that, ests, and two at all times since the two or under present circumstances, the transfer of three first years of its existence. About this institution to the fostering care and $77,000.00 have been expended for its benefit, patronage of government will promote the including the support of the teachers and highest interests of the Hawaiian people, the dwellings erected for their accommoda- we beg leave, through your Excellency, to tion.

submit to his Majesty's government for its We need not point you to the fruits of consideration the following proposals, vis: this cherished institution, scattered through- That the mission of the A. B. C. F. M. out the islands, filling various posts of hon at the Sandwich Islands, acting for and or, responsibility, and usefulness, both in in behalf of the said American Board of and out of the government. They are well Commissioners of Foreign Missions, havknown to his Majesty and the officers of ing its headquarters in Boston, state his government, and to none better than of Massachusetts, in the United States yourself.

of America, relinquish all of their right, The institution has been planted and sus-title, and interest to and in the semtained to the present time by the American inary buildings located at Lahainaluna Board of Commissioners of Foreign Mis on the island of Maui, and known as the sions, from donations given by the American Mission Seminary, together with all of the churches for the spread of the gospel in dwelling houses at that station erected by heathen lands. That board, as we learn by the mission at the expense of the said A. B. recent intelligence, was, at the close of its C. F. M., for the use of the teachers in the last financial year, embarrassed by a debt said Mission Seminary; also the building of $60,000.00, incurred in the prosecution erected by the mission as a printing office of its labors of benevolence and mercy. and bindery; also all lands pertaining to

As a consequence of its indebtedness, it and granted for the use of the Missionary has been obliged to curtail its expenditures Seminary, and also all philosophical and by diminishing its grants to each one of the other apparatus procured for the use of the missions under its care, and this mission, in said seminary, also the public library of the common with others, has shared in the gen- said institution, and to transfer the same eral reduction,

to the Hawaiian government for its use,

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