the war still continues.1 It is true that a war may end by the cessation of hostilities, or by subjugation; but that is not the normal course, and neither had hostilities ceased, nor had the enemy been subjugated in the sense in which that term is used. There were still military operations, the armistice had not been carried out, and after it was, armed forces of the United States were in occupation of enemy territory, and were in European and Asiatic Russia, where, indeed, they still remain. The President was still in command of these forces, and to their conduct telegraphic communication was still essential. All that the armistice could do was to introduce a new, though very vital, consideration into his decision; but it did not affect its finality. A court might conclude that there was no basis for the seizure, but a court would have as little right to entertain the issue before as after the armistice.

There is, moreover, another constitutional power of the President, under which the seizure was justified, and which also depends upon the existence of war-his initiative in the making of treaties. War is not the release of primitive combative instincts; it is an enterprise conducted for purposes consciously understood, whose realization gives to it its only rational significance. The national security and defense is to be judged not by the immediate present, but by the sta

1 Oppenheim, International Law, vol. 2, War, §§ 231, 233, 260-266.

Section 231: "Armistices or truces, in the wider sense of the term, are all agreements between belligerent forces for a temporary cessation of hostilities. They are in no wise to be compared with peace, and ought not to be called temporary peace, because the condition of war remains between the belligerents themselves, and between the belligerents and neutrals on all points beyond the mere cessation of hostilities. In spite of such cessation the right of visit and search over neutral merchantmen therefore remains intact, as does likewise the right to capture neutral vessels attempting to break the blockade, and the right to seize contraband of war."

Articles 36 and 37 of the Fifth Convention at the Second Hague Conference are as follows (translation):

"Art. 36. An armistice suspends military operations by mutual agreement of the belligerents. If its duration is not determined the belligerents may resume such operations at any time provided always that the enemy is advised within the agreed time and in conformity with the conditions of the armistice.

“Art. 37. An armistice may be general or local. The first everywhere suspends military operations between the belligerent states, the second only between certain parts of the belligerent armies and within a fixed radius."

2 Oppenheim, op. cit. § 54: "War is the contention between two or more states through their armed forces for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases."

Section 66: "Ends of war are those objects for the realization of which a war is made. In the beginning of the war its ends are determined by its cause or causes, as already said. But these ends may undergo alteration, or at least modification, with the progress and development of the war. No moral or legal duty exists for a belligerent to stop the war when his opponent is ready to concede the object for which war was made. If war has once broken out the very national existence of the belligerents is more or less at stake. The risk the belligerents run, the exertion they make, the blood and wealth they sacrifice, the reputation they gain or lose through the changing fortune and chances of war-all these and many other factors work or may work together to influence the ends of a war so that eventually there is scarcely any longer a relation between them and the causes of the war."

bility of the ensuing state of peace. The terms of the final conventions, the success of the nation in achieving the aims with which it set out, and which it may have adopted during the progress of war, are the measure of that security and defense. Those aims, whatever they are, are deemed essential to some vital national interest, not necessarily confined to freedom from immediate invasion. It may destroy the armed opposition of the enemy and wholly fail in securing its defense of those interests. The President is charged, by his function of negotiating, for presentation to the Senate, a treaty of peace, with the duty of reducing to preliminary form the success which the arms of the nation may have made possible. His right to hold the cables for such purposes, if valid at all, certainly was not affected by the armistice.

Had the possession of the plaintiffs' cables any relation to the negotiation of peace? Obviouly the possession of some telegraphic communication is essential, leading not only to the immediate place where the negotiations may go on, but to any part of the world which may be affected by, or may affect, the result. Many nations have been involved; many may intervene in the conference; no one can at the moment predict to what part of the world immediate, secret, and rapid communication may become a vital necessity for the success of the nation's purposes. Again, as in assistance to the conduct of war, if the cables be appropriate to a discharge of the President's constitutional duty, the number seized and the service rendered under governmental operation is not open to examination. The decision may be wrong; it may even be actuated by purposes other than those intended by Congress; but the relief is not from judges. The considerations which might dictate it are so obviously political in character as to preclude the possibility of their public disclosure or of their judicial determination. If possible, they are more foreign to the questions which courts may settle than those determining the propriety of the seizure of an instrument of active warfare. Whatever means are in their nature available to the successful conduct of negotiations are open to the President to use while negotiating, if Congress chooses to put them at his disposal.

It is true that, if the issues were justiciable, I am not prepared to say that the allegations of the bills would not present a case. Taken favorably, as I must take them, they say that the plaintiffs have given. a service which in speed, in volume, in organization, and in secrecy has been all that the property is capable of giving. I take this to include either separate operation or joint control. In any event, the defect, if it were strictly a defect, could be supplied by amendment. It is plain that marine cables cannot be used for anything but the transmission of intelligence, and such allegations seem to me unavoidably to present for determination whether the change in possession could improve the character of the service, and so be necessary to the security and defense of the nation in the only respect in which it could assist in that defense. If that question were open to courts at all, I cannot think of any assertions which would better serve to open it. The defendants' argument that a trial might involve polit

ical considerations improper for disclosure only goes to the propriety of any trial at all, not to the necessary inference from the allegations, if they be true. If true, there was no public necessity; hence the issue is well framed, if it is justiciable. I hold that it is not.

The remaining question is simply of the adequacy of the provisions for compensation. The allegations touching the partiality of the defendant Burleson are irrelevant. He will not make the preliminary estimate of the compensation due, but the President, who has not yet even deputed the defendant to advise him. But the whole question. is irrelevant in any case, because of the resort given to the Court of Claims. If that be adequate, the resolution is valid. Upon that question I am concluded by the decision of the Supreme Court in Crozier v. Krupp, 224 U. S. 290, 32 Sup. Ct. 488, 56 L. Ed. 771. The language upon which the plaintiffs rely to distinguish that case does not. appear to me to indicate that a similar provision here should be considered inadequate. It occurs upon page 306 (32 Sup. Ct. 492) and refers to the intangible nature of the property taken, its possible importance to conduct of the government, and the pledge of good faith for payment. Of these the second two certainly apply in the cases at bar, and the first as well, as I understand the opinion. I assume that the reason why the Chief Justice referred to the intangible character of the property taken was because it was impossible in advance to determine its value. The value of the temporary possession of the plaintiffs' cables is as difficult of ascertainment. It was necessarily uncertain when that possession would begin and how long it would continue. How great would be the damage done could be ascertained only after a calculation which could not even approximately be made in advance. Pressing necessities of the most vital nature required the power to be given, and did not admit of any preliminary appropriation. The same statute was considered in Cramp & Sons v. Curtis Turbine Co., 246 U. S. 28, at page 42, 38 Sup. Ct. 271, 62 L. Ed. 560, and its scope somewhat limited; but it is clear that the court meant to repeat its decision that, when a public officer of the United States takes a patent right, it was by virtue of the right of eminent domain, and that a resort to the Court of Claims was adequate compensation. At least in the face of those declarations it would be an obvious impropriety for a District Judge to hold otherwise.

I conclude, therefore, that the seizure was within the powers conferred by Congress, ancillary to the constitutional powers of the President, whose execution it was intended to assist, and that the joint resolution gave adequate compensation. Of the proposed conduct of the defendant in consolidating the cables under one management, whether or not it be in contravention of the Sherman Act, the plaintiffs are not in a position to complain.

The motions are granted, and the bills will be dismissed, with costs.

[ocr errors]


(District Court, E. D. North Carolina.



Where, under the state law, the wife of a bankrupt has an inchoate dower right in his equitable estates, and has joined with him in mortgages under which his realty is sold subsequent to bankruptcy, she has a dower right only in the surplus proceeds, and is not, as against the trustee, representing the unsecured creditors, entitled to the present value of onethird of the entire proceeds of the sale.



January 7, 1919.)


Where the bankrupt's wife had an inchoate dower interest for life in the surplus proceeds of his lands sold under foreclosure, one-third of sucn surplus was directed to be invested in government bonds, to be held by the clerk after settlement of the estate.




Under Bankruptcy Act 1898, § 64b (3), being Comp. St. § 9648, requiring the court to allow as costs of administration "one reasonable attorney's fee for professional services actually rendered to the petitioning creditors in involuntary cases," such allowance must be confined to payment for service actually rendered in filing the petition and prose cuting it to an adjudication.


Under Bankruptcy Act 1898, § 64b (3), being Comp. St. 1916, § 9648, authorizing the allowance of a reasonable attorney's fee for services actually rendered to the bankrupt "while performing the duties herein prescribed," such duties are those required of the bankrupt for the benefit of the estate.


The purpose of the Bankruptcy Act is (1) to apply the property of an insolvent person or corporation to the payment of the debts with as little expense and delay as is consistent with their interests; (2) to relieve the honest and unfortunate debtor from his debts, and give him another opportunity in the industrial life of the community.

In Bankruptcy. In the matter of C. T. Munford, bankrupt. On exceptions to report of special master respecting allowance of dower to Mrs. J. Caroline Munford and allowance to attorneys. Exceptions sustained in part.

Harry Skinner, of Greenville, N. C., for petitioner.

S. J. Everett and Julius Brown, both of Greenville, N. C., for creditors.

F. G. James & Son and F. C. Harding, all of Greenville, N. C., for


CONNOR, District Judge. C. T. Munford was, on the 22d day of September, 1916, adjudged bankrupt. A number of controverted questions having arisen in the course of the administration of the estate, an order of reference was made, appointing F. H. Bryan, Esq., special master, with direction to hear and report the evidence in regard thereto, together with his findings of fact and conclusions of law.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

It appears from his report that, prior to his adjudication, the bankrupt was the owner of several large and valuable tracts of land and town lots, upon which he, together with his wife, Mrs. J. Caroline Munford, had executed mortgages to secure the payment of debts, for which his wife was not personally liable. Subsequent to the adjudication, the several mortgages, pursuant to the power conferred upon them, sold the real estate for sums aggregating $83,740.10. After discharging the debts secured by the mortgages, with the expense incurred in making sales, the excess of $10,389.79 was paid to the trustees in bankruptcy, and is held by them for distribution among the unsecured creditors, subject to the dower right of Mrs. Munford, which she asserts in this proceeding.

The master reports that, on the day of the sale, C. T. Munford, was 55 years of age, and his expectancy, ascertained by reference to the mortuary table (Rev. 1905, § 1626), is 17.4 years. Mrs. Munford was, on the same day, 48 years of age, and her expectancy is 22.4 years, being 5 years in excess of the expectancy of her husband. The master finds the value of her dower interest to be $3,613.26, one-third of the amount derived from the sale of the real estate, after paying the mortgage indebtedness. He ascertains the present value of this amount to be $912.23. This result is reached by calculating that she will survive her husband 5 years, and adopting the expiration of his expectancy as the date upon which her right to dower will become consummate.

To this conclusion Mrs. Munford excepts and insists:

(1) That she is, as against the trustees, representing the unsecured creditors, entitled to the present value of one-third of the entire proceeds of the sale of the real estate.

(2) That, in ascertaining the present value of this sum, she is entitled to have her expectancy placed at 11 years-that being the period fixed by the tables for a person who has reached 65 years, her age at the date of the anticipated death of her husband.

[1] The rights of Mrs. Munford are dependent upon, and fixed by, the law of North Carolina. They are not controlled, or affected by, the provisions of the Bankrupt Law. Revisal 1905, c. 78, § 3083 (Acts 1868-69, c. 93, § 32), provides that

"Widows shall be endowed as at common law, as in this chapter defined."

Section 3084 provides that, upon the death of her husband intestate, every married woman shall be entitled to an estate for her life in one-third in value of all the lands whereof her husband was seized and possessed at any time during coverture. The statute provides the procedure for the allotment of dower upon the death of the husband. Prior to 1868, a widow was endowed only of lands of which the husband died seized and possessed. In Thompson v. Thompson, 46 N. C. 430, it was held that the widow of a mortgagor deceased was entitled to dower in the equity of redemption, or other equitable estate, owned by her husband. It was held in Caroon v. Cooper, 63 N. C. 386, that upon the death of the husband, possessed of an equity of redemption, the widow was entitled to have the two-thirds of the

[ocr errors]
« ForrigeFortsett »