also, Dowdell v. United States, 221 U. S. 325, 327; Pico v. United States, 228 U. S. 225, 230. In short, the appellate jurisdiction of the Supreme Court of the Philippine Islands in criminal cases is not confined to mere errors of law, but extends to a review of the whole case. And such is the settled practice of that court. United States v. Abijan, .1 Phil. Rep. 83, 85; United States v. Atienza, 1 Phil. Rep. 736, 738.

Judgment affirmed.

CARLSON v. STATE OF WASHINGTON, ON THE RELATION OF CURTISS.

ERROR TO THE SUPREME COURT OF THE STATE OF

WASHINGTON.

No. 307. Submitted March 17, 1914.-Decided May 25, 1914.

Although plaintiff in error, after setting up a Federal defense in the trial court, may not have based any exceptions upon the failure of that court to recognize it, if the appellate court did recognize, and by its decision necessarily overruled, that defense, this court must deal with the Federal question. North Carolina R. R. v. Zachary, 232 U.S. 248.

While, in ordinary cases, this court is bound by the findings of the state

court of last resort, that court cannot, by omitting to pass upon basic questions of fact, deprive a litigant of the benefit of a Federal right properly asserted; and it is the duty of this court, in the absence of adequate findings, to examine the record in order to determine whether there is evidence which furnishes a basis for such a Federal right. Southern Pacific Co. v. Schuyler, 227 U. S. 601. After reviewing the congressional and state legislation in regard to the construction of the Lake Washington Waterway, held that Congress has refrained from authorizing any work on behalf of the Federal Government with reference to lowering the level of Lake Washington, and that all responsibility in that respect was assumed by the State and county; and, notwithstanding the contract was made by

Opinion of the Court.

234 U.S.

an officer of the United States Army, it was not on behalf of the United States, but as representing the State of Washington. Under the acts of Congress relative to the Lake Washington Waterway, no agency of the Federal Government could have arisen prior to the action involved in this case with respect to anything done in connection with the construction of the canal.

Orders given by an officer of the United States in connection with work not authorized by any act of Congress will not justify one violating the injunction of a state court as doing the act under the direction of officers of the United States in charge of Government work. The fact that title to right of way for a canal has vested in the United States and after completion the Secretary of War is to take charge of the canal, does not make the United States responsible, prior to completion, where Congress has expressly declared that the canal will only be accepted after completion, and that the local authorities shall meanwhile assume all responsibility in connection therewith. 66 Washington, 639, affirmed.

THE facts, which involve a review of the legislation, state and Federal, in regard to the construction of the Lake Washington Waterway to Puget Sound, and the extent of the responsibility of the Federal Government therefor, are stated in the opinion.

Mr. Corwin S. Shank for plaintiff in error.

There was no appearance or brief filed for defendant in

error.

MR. JUSTICE PITNEY delivered the opinion of the court.

Plaintiff in error was adjudged by the Superior Court of Thurston County, in the State of Washington, to be in contempt of that court, in that, with notice of a decree made by it restraining and enjoining any further excavation of the Lake Washington Canal, or any lowering of the waters of Lake Washington, he proceeded to blow out an embankment at the head of the canal, which until that

time held the waters of the lake at their natural level, so as to permit these waters to flow into the canal and thereby lower the level of the lake. The Supreme Court of the State affirmed the judgment (66 Washington, 639), and the case comes here under § 237, Jud. Code, upon the ground that the acts done by plaintiff in error, and because of which he was held to be in contempt of court, were done under the direction and authorization of officers of the War Department of the United States, acting in the performance of their duties in constructing a public improvement consisting of a ship canal extending from Lake Washington to Salmon Bay, in pursuance of statutes of the United States.

Our examination of the Federal question is somewhat embarrassed because the findings and statements of fact by the state courts contain no finding respecting some of the facts that are alleged as the basis of the present contention of plaintiff in error. The inadequacy is attributable, no doubt, to the mode in which the alleged Federal right was asserted. Plaintiff in error having been brought before the trial court upon an order to show cause, based upon a sworn complaint or information made by the relator setting forth circumstantially the blowing out of the embankment in question by one Erickson and by plaintiff in error as his foreman, the latter in his answer denied that he blew out the embankment upon the orders of Erickson, and on the contrary averred that he "did so by express orders of the engineering department of the United States Government." There was testimony tending to support this averment, but the trial court, while making no specific finding upon the subject, in effect held that the work was done in behalf of the State of Washington, one of the parties to the cause in which the restraining decree was made. To its findings numerous exceptions were taken, but in none of these was any Federal right asserted, nor was any deficiency in the findings suggested. The Su

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

claim of Federal right as might reasonably have been found, with the following result:

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