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the Supreme Court of the United States, the case was heard by nine different Justices of the Supreme Court of the United States (most of the justices naturally having participated in two or three of the hearings), and only two justices dissented at the second hearing, the other decisions being unanimous.

No system of jurisprudence and no tribunal can guarantee absolute and abstract justice so long as men are fallible; but it is submitted that such unanimity on three separate appeals to the Supreme Court of the United States gives as great an assurance of substantial justice as can very well be had in this “best of all possible worlds.” No litigant anywhere is entitled to more than a fair hearing before honorable and competent judges, and that the claimant in this case has had three times before the highest court of the United States.

The third time that this case came before the District Court of the Third Judicial District of New Mexico, the claimant in this case (there the defendant), failed to appear within the twenty days limited by the Statute, and judgment was accordingly given against the claimant company by default. Months afterwards, the claimant moved to open that default, and the District Court, failing to find any irregularity in the judgment rendered, overruled the motion.3 This decision was unanimously affirmed by the Supreme Court of New Mexico,* and again unanimously affirmed by the Supreme Court of the United States. Therefore, in the last trial and the appeals therefrom, we have three courts, in which 13 judges sat, unanimously holding that the claimant was properly defaulted for failing to appear and answer. The United States respectfully submits that no system of jurisprudence either has been or can be devised in which it is not necessary to fix definite periods within which parties must appear in court and defend their rights if they have any, and failing such appearance must be held to have forfeited any rights which they may have had.

It is submitted that the truth of this statement is admirably illustrated by the excuse for its laches offered by the claimant in attempting to reopen the default in the litigation before the courts of the United States. The default arose from the failure of the claimant company, the defendant in the case, to answer a supplemental bill filed by the Government of the United States on April 7, 1903, in the Third Judicial District Court of New Mexico, in which the Government asked a forfeiture of defendant's alleged rights on the ground of non-completion of its works within the statutory period of five years.

1 Decree allowing injunction, May 21, 1903. Appendix to the Answer, p. 74. See also, Amended decree, October 5, 1903. Appendix to the Answer, p. 76.

Motion to open default. Appendix to the Answer, p. 672.

3 Order overruling motion to open default, January 29, 1904. Appendix to the Answer, p. 78.

4 Final decree affirming the judgment of the District Court, March 2, 1906. Appendix to the Answer, p. 80.

Opinion of the Court, December 13, 1909. Appendix to the Answer, p. 92.

In an affidavit filed in the Third Judicial District Court of the Territory of New Mexico on October 28, 1903, in support of a motion to open the default, by Dr. Boyd, who signs the Memorial as receiver for the claimant company, Dr. Boyd admits that the claimant was represented by counsel both before the Territorial Court in New Mexico and at Washington, and that he (Boyd) “represented said defendants in all things pertaining to the aforesaid litigation." He admits that he received from Washington counsel for the claimant a copy of the supplemental bill filed by the Government (which he was bound to answer in twenty days); admits that he took no action and gave no instructions for months after having received it; and seeks to explain his conduct on the dual ground that he did not understand that any action was necessary, and that the serious illness of his wife required his unremitting attention.” But the record shows that while Dr. Boyd for some reason took no action looking toward the filing of an answer in his case during the more than six months which elapsed between April 7th and October 19th, and, so far as the record shows, did not even communicate with his attorneys of record in the case, either in Washington or New Mexico, he found time to write under date of July 10, 1903, a fifty-three page typewritten letter to Mr. R. Newton Crane, a distinguished attorney in London, who had nothing to do with his case, at least at that time.

In this letter he reviews from his point of view the whole history of the case and seems to show a perfect knowledge and understanding of its then situation, including the filing of the Government's supplemental bill. It may be observed, incidentally, that he also finds time to express the hope that

"it will not be necessary for me to sacrifice myself further by publically pulling John Hay's nose or caning him, or putting a bullet through him, in order to arouse sufficient public interest in my charges to ensure their proper investigation."

It would seem that before composing this fifty-three page letter threatening personal violence to Secretary of State of the United States

1 Supplemental complaint, filed April 4, 1903. Appendix to the Answer, p. 667. 2 Affidavit of Nathan Boyd, October 28, 1903. Appendix to the Answer, p. 663.

3 Mr. Nathan Boyd to Mr. R. Newton Crane, July 10, 1903. Appendix to the Answer, p. 463.

* Id., p. 476.

Dr. Boyd might better have taken the time to dispatch a telegram of instruction or inquiry to his attorneys of record in Washington or Las Cruces.

In the case of R. E. Brown, which is scheduled to be heard by this honorable Tribunal at the same session at which the Rio Grande Claim is set for hearing, the answer of His Britannic Majesty's Government maintains that "a decision does not constitute a denial of justice unless it is so obviously wrong and unjust that no court could honestly have arrived at such a conclusion,’’l and adds, referring to the judicial decision which is complained of in that case,

"Judged by this test the order of the court on the 2nd March, 1898, does not and cannot amount to a denial of justice and no claim to compensation can be founded thereon."

Without discussing the definition of a denial of justice put forward by His Majesty's Government in the Brown case, it may be observed that, obviously, “judged by this test," the decisions of the United States Supreme Court in the case of the United States v. The Rio Grande Dam & Irrigation Company, et al., do not "and cannot amount to a denial of justice and no claim to compensation can be founded thereon."

Many definitions of a "denial of justice" have been offered by text-writers and jurists. Without attempting at this time to suggest what may be the soundest definition, it is believed that no definition which has ever been suggested would permit a claimant who, when regularly summoned, had failed to appear in court within a proper time and who had on that account been defaulted, to say that he had suffered a denial of justice.

The Larger Questions Involved. Here the United States might well rest its Answer, adducing in support thereof the judicial decisions in the United States v. The Rio Grande Dam & Irrigation Company and The Rio Grande Irrigation & Land Company (Ltd.), which are printed on pages 1 to 98 of the Appendix to the Answer of the United States.

But the United States does not wish to rest here. This claim is relatively unimportant, but the general controversy over the equi. table distribution of the Rio Grande, of which it forms an incident, involved large questions of public interest to a considerable section of the United States and evoked sharp and honest differences of opinion between individuals and between localities. It involved problems of water distribution which affected directly the relations of the United States with Mexico on the south, and, indirectly, its relations with Canada on the north. Under these circumstances and amid these conflicting interests, it was easy for a plausible and clever man with private interests to serve to gain a hearing quite disproportionate to the merits or the importance of his case. The situation afforded a rare opportunity "to fish in troubled waters."

1 Answer of His Britannic Majesty's Government in the Claim of Robert E. Brown, p. 228.

DR. NATHAN BOYD.

The opportunity found its man in Dr. Nathan Boyd, an American eitizen who, together with the British Agent and four counsel," signs the Memorial of His Britannic Majesty's Government in this claim, in the capacity of Receiver for the Rio Grande Irrigation & Land Company (Ltd.).

With a persistency and a plausibility worthy of a better cause, Dr. Boyd has for the past quarter of a century carried on a campaign on behalf of his “Elephant Butte Dam scheme” in the courts, before Committees of the United States Congress, before the various Departments of the United States Government, and before the public. Most unfortunately, a number of worthy people, both in the United States and Great Britain, have been persuaded to give him their confidence, and he has received the toleration and assistance of many others who thought that their own interests jumped with his. In the course of this campaign, he has charged practically every public officer of the United States with whom he has come into contact, with criminal

1 The British Memorial in this claim is signed by the British Agent and by Messrs. Joseph W. Folk, Will R. King, Henry R. Harriman, and John Stuart Hunt, "of counsel for the claimants, and by Nathan Boyd, Receiver for the Rio Grande Irrigation & Land Company (Ltd.), (British Memorial, p. 49). All of those signing the Memorial, except the British Agent, are American citizens. Since the filing of the Memorial, Mr. Folk has withdrawn from the case. (Hon. Joseph W. Folk to the Department of State, August 13, 1921, Appendix to the Answer, p. 616. Compare, Mr. Nathan Boyd to the Secretary to the Secretary of State, April 7,, 1922, Appendix to the Answer, p. 620.) Mr. Hunt has been " dismissed' by Dr. Boyd. (Mr. Nathan Boyd to the Secretary of State, March 29, 1923, Appendix to the Answer, p. 652. Compare, Mr. Nathan Boyd to the Attorney General, October 31, 1922, Appendix to the Answer, p. 636.) As for Mr. King, the Agent for the United States has deemed it his duty to call Mr. King's attention to the provisions of the Revised Statutes of the United States, Section 190. (The Agent for the United States to Mr. Will R. King, March 17, 1923, Appendix to the Answer, p. 753.) Mr. King, in his reply, states that he does not deem these provisions in point, but indicates that he might on other grounds withdraw from the case, and it is assumed that he has done so. (Mr. Will R. King to the Agent for the United States, March 20, 1923, Appendix to the An. swer, p. 754.) This leaves as signers of the Memorial His Britannic Majesty's Agent, Mr. Henry R. Harriman, “of counsel,” and Nathan Boyd, Receiver, the two latter being American citizens.

misconduct. In particular, he has pursued General Anson Mills, formerly United States Commissioner on the United States and Mexican Boundary Commission, with a concentrated venom which would seem impossible in any human soul.

GENERAL ANSON MILLS.

General Mills is approaching his eighty-ninth birthday. Practically all his life, since as a young man he left West Point Military Academy, has been given to his Government. He fought all through the Civil War, being steadily promoted from lieutenant to lieutenantcolonel for “gallant and meritorious service.” He served with credit in the Indian campaigns in the west, and rounded out a career of over a half century of faithful service to his country by serving for more than twenty years as Boundary Commissioner on the United States and Mexican Boundary Commission. Many officers of the United States Government are better known, but few have records of more solid achievement to their credit, and none is more universally respected as an officer and as an upright man.

THE THEORY OF THE CLAIMANT.

The theory of the claimant company for many years has been that the company secured a vested right under a grant from the Department of the Interior to impound the waters of the Rio Grande ;2 that this right was destroyed as a result of litigation on the part of the Government of the United States, “instigated'?3 by General Anson Mills, the American member of the Mexican Boundary Commission, as a part of a conspiracy between General Mills and speculative holders of Mexican lands in the El Paso Valleyto defraud the United States and to ruin the claimant; that this litigation was founded on the dishonest contention that the dam of the claimant company would obstruct the navigable capacity of the Rio Grande" and was supported by the “perjured" statements of General Mills, such fraudulent purpose and perjury being known to and condoned by the higher officers of the Government of the United States, including Attorneys General Griggs and Knox, Secretaries of State Hay and Root, and Secretary of War Taft; that this suit, conceived in fraud and maintained by perjury, was dishonestly and corruptly crowned with suc

1 See Dr. Boyd's communications, as printed, Appendix to the Answer passim.

2 British Memorial Exhibit “N,” Dr. Boyd's statement in the Department of the Interior, filed November 16, 1915, p. 5.

3 Id., p. 19. 4 Id., p. 24. 5 Id., p. 33. 6 Id., p. 27. 71d., p. 51.

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