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Opinion of the Court.
234 U. S.
preme Court, however, instead of disregarding the claim of Federal right upon the ground that it had been abandoned in the trial court, recognized the contention of plaintiff in error that the "work was done under the direction of the United States engineers who had charge of the work for the Government," and by its decision necessarily overruled it. We must, therefore, deal with the Federal question. North Carolina R. Co. v. Zachary, 232 U. S. 248, 257.
Among the assignments of error is one based upon the refusal of the Supreme Court to find as a fact that the acts for the performance of which plaintiff in error was held guilty of contempt were done under the direction and authorization of officials of the War Department of the United States, acting in pursuance of and in accordance with the acts of Congress. While, in ordinary cases, we are bound by the findings of the state court of last resort respecting matters of fact, it is hardly necessary to say that that court cannot, by omitting to pass upon the basic questions of fact, deprive a litigant of the benefit of a Federal right, any more than it could do so by making findings that were wholly without support in the evidence. And just as this court, where its appellate jurisdiction is properly invoked and all the evidence is brought before it, will, if necessary for a decision of a Federal question, examine the entire record in order to determine whether there is evidence to support the findings of the state court, so it is our duty, in the absence of adequate findings, to examine the evidence in order to determine what facts might reasonably be found therefrom and which would furnish a basis for the asserted Federal right. Southern Pacific Co. v. Schuyler, 227 U. S. 601, 611, and cases cited.
Since the present record appears to contain all the evidence that was submitted to the state courts, we proceed to supplement the statement made by the Supreme Court by adding such further facts pertaining to the asserted
Opinion of the Court.
claim of Federal right as might reasonably have been found, with the following result:
234 U. S.
One Erickson, a general contractor, had entered into a contract for excavating a part of the Lake Washington Canal. The contract was in writing, dated August 16, 1910, and was made between "Arthur Williams, Captain Corps Engineers, United States Army, hereinafter represented as the contracting officer representing the State of Washington, on the one part, and C. J. Erickson, of Seattle, in the County of King, State of Washington, hereinafter designated as the contractor, of the second part." The work covered by the contract was nearing completion when, on October 22, 1910, in an action. pending in the Superior Court in and for the County of Thurston, between William L. Bilger and others, plaintiffs, and the State of Washington, King County, and Erickson, defendants, upon the application of the plaintiffs for an order enjoining defendants from removing the embankment between the excavated portion of the canal and Lake Washington, the court, being satisfied that such removal might tend to lower the waters of the lake to the detriment and damage of the plaintiffs, announced that a restraining order would issue. In accordance with this announcement a formal decree was made under date October 28. Erickson had notice of the announced decree, and plaintiff in error, who was acting as his foreman upon the work, had written notice of it on October 26, after which he proceeded to blow up the embankment, contrary to the prohibition. Under the state practice, the decree bound them from the time they were informed of it, although it was not yet formally entered. There was evidence tending to show that plaintiff in error acted under orders coming not from Erickson, but from Captain Williams; and his own testimony was to this effect. Other evidence tended to show that the canal strip or right of way was in the control of the War Department, with a watchman actually upon
Opinion of the Court.
the ground. The contract was not introduced in evidence, and there was only meagre testimony as to its contents, which left it doubtful whether the final work of excavating the opening between the head of the canal and the lake was within its provisions. Since there is no distinct finding upon this subject, we will consider the case in both aspects.
The act of Congress especially invoked as authority for what was done by plaintiff in error under direction of Captain Williams, is the River and Harbor Act of June 25, 1910 (36 Stat. 630, 666, c. 382), which contains the following:
"Puget Sound-Lake Washington waterway: Continuing improvement by the construction of a double lock, with the necessary accessory works, to be located at "The Narrows,' at the entrance to Salmon Bay, in accordance with the project set forth in House Document Numbered Nine hundred and fifty-three, Sixtieth Congress, first session, one hundred and fifty thousand dollars; and the Secretary of War may enter into a contract or contracts for such material and work as may be necessary to complete said lock and accessory works, to be paid for as funds may be provided from time to time by law, not to exceed in the aggregate two million two hundred and seventy-five thousand dollars, including the amount herein appropriated: Provided, That before beginning said work, or making such contract or contracts, the Secretary of War shall be satisfied that King County, or some other local agency, will do the excavation in the waterway above the lock to the dimensions recommended in said project, and will also secure the United States from liability for any claims or damages on account of the grant made to James A. Moore or his assigns by the Act of Congress approved June eleventh, nineteen hundred and six, or on account of the lowering of the level of Lake Washington, raising the level of Salmon Bay, or any other alteration of the level of any part of said waterway."
234 U. S.
In order to correctly appreciate the meaning and effect of this language, it is necessary to refer to House Document No. 953, 60th Cong., 1st Sess. (Vol. 20), and to certain previous acts of Congress therein mentioned; and while reviewing these acts we may at the same time consider whether any of them contains any justification of what was done by plaintiff in error.
By way of preface, it should be stated that the city of Seattle lies between the tidal waters of Puget Sound and Lake Washington, the latter being a body of fresh water two miles or more in width and nineteen miles or more in length, and having a natural level 30 feet or more above mean low water in the Sound. Between this lake and the Sound is Lake Union, a smaller body of fresh water (covering about 1,000 acres), and having a natural level much lower than that of Lake Washington, yet considerably above the tide. The lakes had independent natural outlets. Salmon Bay is a small body of water connected through Shilshole Bay with Puget Sound, and is (or was) affected by the ebb and flow of the tide. The outlet of Salmon Bay is known as "The Narrows." Salmon Bay and Lake Union are wholly within the exterior limits of Seattle, and the city has also a considerable frontage on Lake Washington. This lake, as well as the city, lies within the limits of King County.
As early as the year 1890, September 19, 1890, 26 Stat. 426, 452, c. 907, Congress authorized a survey and estimate to be made for a ship-canal to connect the waters of these lakes with Puget Sound. A survey and report were made accordingly, but nothing resulted until 1894, August 18, 1894, 28 Stat. 338, 360, c. 299, when Congress appropriated $25,000 for dredging Salmon Bay, and the improvement of the waterway connecting its waters with. the lakes, but with a proviso that no part of the money should be expended upon the improvement of the connecting waterway until the entire right of way and a release
Opinion of the Court.
from all liability to adjacent property owners had been secured to the United States free of cost and to the satisfaction of the Secretary of War. By act of March 2, 1895, 28 Stat. 910, 948, c. 189, $5,000 of this amount was authorized to be expended in making a definite survey and location of the improvement and in preparing a cadastral map showing each property required to be deeded to the United States or from which a release was required. The act of June 3, 1896, 29 Stat. 202, 234, c. 314, appropriated $150,000, again with the proviso that no part of it should be expended on the improvement of the waterway connecting the Sound with the lakes until the entire right of way and a release from all liability to adjacent property owners had been secured to the United States; and with the further declaration that the canal might be constructed either by the Smith's Cove route or by the Shilshole Bay route, in the discretion of the Secretary of War.
In 1898 a Board of Engineer Officers was appointed to determine the choice, and recommended the Shilshole Bay route, with a lock at the Narrows near the foot of Salmon Bay. This recommendation was approved by the Secretary of War April 14, 1899, and right of way proceedings were completed and deeds obtained and accepted by the Secretary of War in 1900.
The legislature of Washington, by act approved February 8, 1901, Sess. Laws, p. 7, granted to the United States the right to construct and operate the ship canal upon any lands belonging to and waters of the State in King County, within limits to be defined by the plans and specifications for the improvement as approved by the Secretary of War, with the right to raise the waters of Salmon Bay and to lower the waters of Lake Washington in the prosecution of the improvement.
Congress was still unwilling to sanction any particular project for the canal, and by act of June 13, 1902, 32 Stat. 331, 347, c. 1079, while an appropriation of $160,000 was