BRANDEIS, J., dissenting. 274 U.S. meaning wilful and malicious physical damage or injury to physical property." To prove the crime, the Government undertook to show that the defendant was a member of the I. W. W. and that the I. W. W. advocated, among other things, the use of sabotage. On that subject the trial judge gave the following instruction, which was duly excepted to: "Sabotage has been variously defined. Webster's New International Dictionary defines it as 'Scamped work; malicious waste or destruction of an employer's property by workmen during labor troubles.' Funk & Wagnalls' New Standard Dictionary defines it as: 'Any poor work or other damage done by dissatisfied workmen; also, the act of producing it; plant wrecking.' Nelson's Encyclopedia defines it thus: 'The organized hampering of production by slack work, skilful disabling of machinery or the publication of trade secrets.' The New International Encyclopedia defines it thus: 'Sabotage may consist in throwing the progress of production out of order, through tampering with machinery, improper use of material, or loitering at work.' The Encyclopedia Americana defines it as: 'A method used by labor revolutionists to force employers to accede to demands made on them. It consists in wilful obstruction and interference with the normal processes of industry. It aims at inconveniencing and tying up of production, but stops short of actual destruction or of endangering human life directly.' "The statute, itself, you will notice, however, denounces sabotage as meaning wilful and malicious physical damage or injury to physical property. "Now, there has been presented to you evidence, of the truth or falsity of which, however, you are the exclusive judges, to the effect that this organization, amongst other things, advocated what is known as slowing down on the job, slack or scamped work, such as loading of a ship in such a way that it took a list to port or starboard 328 BRANDEIS, J., dissenting. and therefore had to limp back to port, and things of that kind. I instruct you that under the definition as laid down by the legislature of California, that any deliberate attempt to reduce the profits in the manner that I have described would constitute sabotage." The testimony referred to by the court in the above instruction was this: "Under similar circumstances I heard Leo Stark, a member of the I. W. W., say in a speech on May 10th, 1923: 'When you go back to work, if we do have to go to work, we will put on the wooden shoe.' Then he said: 'In case you are loading telephone poles on a ship down there, sometime the boss is not looking you can slip a couple of poles crossways and then cover up, and then when that ship goes to sea naturally she will start rolling and the cargo will shift, and then she will come in listed like the one you see out in the harbor, then she has got to tie up to the dock, and she will have to unload the telephone poles and put them in again and put them straight, and then we will get paid for the loading originally, and get paid for unloading it and get pay for loading it again, and that will hit the bosses hard in the pocketbook. "Mr. LEWIS. I move that that answer be stricken out as immaterial, irrelevant and incompetent, not within the definition of sabotage as laid down in the statute, or the Criminal Syndicalism law. "The COURT. I cannot see it. As I said before, I cannot see but what any deliberate act, the purpose of which is to reduce the profits of the physical thing, is not equally an injury. Motion denied. "Mr. LEWIS. I note an exception." The exception to the charge is insisted on, although the objection to the admission of the evidence is not urged here. The charge was clearly erroneous. It plainly directed the jury that "slowing down on the job" and "scamped work" constituted sabotage within the mean BRANDEIS, J., dissenting. 274 U.S. ing of the statute. Since the jury must have taken it to be an exposition or interpretation of the words of the statute, the error was not cured by definition, elsewhere in the charge, of sabotage in the terms of the statute. The court ruled throughout the course of the trial, that evidence to show a program of scamped work was admissible. Much of the Government's evidence consisted of documents showing such a program on the part of the I. W. W. The charge inevitably led the jury to think that all such evidence showed the guilty character of the organization. It is said that the charge, if erroneous, was not prejudicial, because the illegal character of the organization was established by other evidence than that which formed the basis of the charge, and because even the latter evidence showed the advocacy of acts which amounted to a malicious destruction of property, and so might properly support a conviction even under a proper construction of the statute. Even in civil cases erroneous rulings, especially those embodied in instructions, are presumptively prejudicial. Filippon v. Albion Slate Co., 250 U. S. 76, 82; United States v. River Rouge Co., 269 U. S. 411, 421. The illegal character of the organization was not conceded. There was evidence from which the illegal character might have been deduced. But the evidence related, in the main, to the acts of individuals. The effort of the defense was to disavow those acts.. It is also said that the exception to the charge was not properly taken. The defendant excepted specifically to that portion of the charge which dealt with sabotage. The precise ground of the exception was not set forth. But the continued objections to the admission of evidence upon the ground here urged, and the court's adverse rulings thereon, could have left no doubt in the mind of the court as to what was meant by the exception here in question. Moreover, the case comes to this 328 Statement of the Case. Court from a lower federal court. We have, therefore, the power to correct errors committed below although objection was not taken there. That power has been repeatedly exercised in criminal cases. See Wiborg v. United States, 163 U. S. 632, 658-660; Clyatt v. United States, 197 U. S. 207, 221-222. This case, I think, warrants its exercise. The judgment should be reversed. PHELPS v. UNITED STATES. CERTIORARI TO THE COURT OF CLAIMS. No. 531. Argued March 3, 1927. Decided May 16, 1927. 1. A claim for just compensation for the use of property taken by the Government is "founded upon the Constitution," within the meaning of Jud. Code, § 145. P. 343. 2. A claim for just compensation for property taken for public use by officers or agents of the United States pursuant to an Act of Congress, is a claim founded upon an implied contract. Jud. Code, 145. P. 343. 3. Where the use of private property is taken by eminent domain and paid for later, the owner is entitled to the value at the time of taking and such additional amount that the whole may be equivalent to the value of such use at the time of the taking paid contemporaneously with the taking. P. 344. 4. Such additional allowance may be measured by a reasonable rate of interest, but is not properly interest, and is not within the prohibition of interest before judgment found in Jud. Code, § 177. P. 344. 61 Ct. Cls. 1044, reversed. CERTIORARI (273 U. S. 678) to a judgment of the Court of Claims allowing a recovery of less than the amount claimed as the balance due for the value of the use of a wharf, on which petitioners had a lease, and which was taken over for military purposes during the late war. Mr. Harold S. Deming, with whom Mr. L. Russell Alden was on the brief, for petitioner. Assistant Attorney General Galloway, with whom Solicitor General Mitchell was on the brief, for the United States, did not oppose the issuance of the writ, and submitted the case with some doubt as to the soundness of the result below. Messrs. Ira Jewell Williams, John H. Stone, F. R. Foraker, Charles L. Guerin, and Ira Jewell Williams, Jr., filed a brief as amici curiae, by special leave of Court. MR. JUSTICE BUTLER delivered the opinion of the Court. Plaintiffs were partners doing business as Phelps Brothers and Company; the petitioner is the survivor. They owned a lease on Pier No. 7 of the Bush Terminal in New York Harbor. December 31, 1917, pursuant to an Act of August 29, 1916, c. 418, 39 Stat. 619, 645, and an Act of August 10, 1917, § 10, c. 53, 40 Stat. 276, 279, the Secretary of War by direction of the President requisitioned that pier and other portions of the Bush Terminal for use in carrying on the war. Plaintiffs vacated, and the United States took possession of the property and continued to occupy it until May 14, 1919. The Secretary's order stated that steps would be taken to ascertain fair compensation for the temporary use of the property; and a board of appraisers was created for that purpose. The plaintiffs continued to pay rent to the lessor; and, in accordance with the finding of the board, the amount of such payments, $79,890.42, was repaid to plaintiffs by the United States. The board also found the value per month of the use of the plaintiffs' property less the monthly rents paid. The amount calculated on that basis was not satisfactory to plaintiffs; they elected to take 75 per cent. of the award and there was paid them |