That the allowance of extra compensation to persons holding office under our Government is not contrary to the Constitution or theory of our Government is expressly recognized by Congress in numerous acts throughout our history, for the various acts prohibiting such extra compensation limit such prohibition by the words "unless expressly authorized by law." (See secs. 1763 and 1764, U. S. Rev. Stats.) Or by the following language appearing in the act of May 1, 1876: Unless the same is authorized by law and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation. (19 Stat., 45.) If "extra compensation" were opposed to the Constitution, the fundamental principles or the theory of our Government, it could not be authorized by Congressional enactment or legalized by an appropriation therefor. To what law do we look in determining what action is authorized in Cuba? International law. That law not, only "authorizes," it requires that the military commanders of a force which has driven out the previous government should assume and discharge the administration of civil affairs, and devote the revenues of the country to that purpose. Who makes the appropriation or distribution of the revenues for the accomplishment of that purpose? Clearly the commander in chief of the occupying army. This is not the first Congress which has considered the propositions now before us. During the war with Mexico, and afterwards, President Polk exercised the right of distributing or appropriating the funds derived from the customs revenues of the country occupied by our armies. The money so secured was collected as military contributions or requisitions. It was seized as legitimate spoil of war, and held and intended for the use and benefit of the United States. In this respect it differed from the funds derived from the revenues being collected in Cuba, which are created, collected, and used for the use and benefit of the island itself. Although the money secured by our military forces in the war with Mexico was money belonging to the United States, it was not converted into the Treasury of the United States, and President Polk used it, as his discretion determined, "toward defraying the expenses. of the war," among which was included additional compensation to the officers of the Army performing services as civil officials. The authority of President Polk to dispose of the funds so collected was challenged in Congress. (Congressional Globe, vol. 20, p. 57, Dec. 18, 1848.) The matter was referred to a select committee, who submitted a majority report denying such authority in the President and a minority report sustaining the course pursued by President Polk. (See Reports of Committees, 2d sess., 30th Cong. (1848–49), Report No. 119; see Message Pres. Polk to Cong., Jan. 2, 1849; Richardson's Comp., vol. 4, p. 672; see Discussion of Message, 20 Cong. Globe, p. 148. et seq.) The course pursued by President Polk was finally sustained by Congress by the passage of an act approved March 3, 1849, entitled "An act to provide for the settlement of the accounts of public officers and others who may have received moneys arising from military contributions or otherwise in Mexico." (9 Stats., 412.) It must not be forgotten that the moneys disbursed by order of President Polk belonged to the United States, and the officers who had received and disbursed the same were required to account therefor to the Treasury Department. Hence the necessity for the aboveentitled act. In the instance with which we have to deal, the moneys do not belong to the United States. Section 2 of the act above referred to is as follows (9 Stats., 413): SEC. 2. And be it further enacted, That where an officer has had the supervision of the collection of the military contributions at any of the ports in Mexico, and has at the same time exercised civil functions under the temporary government there established, or where any officer or other person shall have performed the duties of collectors at such ports, such officer or person shall be allowed a compensation which shall be assimilated in amount, as nearly as may be, including the regular pay and emoluments of such officer, to that allowed by existing laws to officers of the customs in the United States where the services are similar in amount and importance, such allowance, in all cases to be determined by the President of the United States. And all officers of the Army and other persons in public employment who have received payment for their services in collecting, keeping, or accounting for said moneys, and for other necessary services, are authorized to retain so much of the amount so received as in the opinion of the President of the United States may be a fair compensation for said services. THE STATUTE PROHIBITING OFFICERS OF THE ARMY FROM HOLDING CIVIL OFFICES. Section 1222, United States Revised Statutes, provides as follows: No officer of the Army on the active list shall hold any civil office, whether by election or appointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an officer of the Army, and his commission shall be thereby vacated. This provision is intended to prevent officers of the military branch of the Government of the United States from holding office in the civil branch of the Government of the United States. It would be absurd to contend that it prevented an officer of the Army from complying with the law and usages of civilized warfare which require him to assume and discharge the duties of a civil officer in territory subject to military government. The officer who fills the position under military government does not exercise his own judgment or volition in assuming it, but simply obeys the order of the commander in chief requiring him so to do. In conclusion, allow me to direct attention to the fact that it is not contended herein that Congress may not regulate the military establishment of the United States. Such laws as Congress may enact in regard to such military establishment are binding upon the commander in chief and the officers and men composing such establishment, whether they are at home or abroad. But there is a distinction, plain and broad, between the military establishment of the United States and the government of civil affairs in the island of Cuba. APPLICATION OF THE PURCHASERS OF THE SAN JUAN AND RIO PIEDRAS TRAMWAY FOR CONFIRMATION OF SALE AND TRANSFER OF CONCESSION, AND FOR CERTAIN PRIVILEGES DESIRED UPON COMPLETION OF TRANSFER. [Submitted January 26, 1900. Case No. 17, Division of Insular Affairs, War Department. SIR: I have the honor to submit the following report on the application of J. G. White & Co., Philip H. McMillan, S. Gilbert Averell. Frederic B. Jennings, W. H.- Post, Lathrop R. Bacon, and Trenor L. Park, by their attorneys, Curtis, Mallet-Prevost & Colt, regarding a number of matters relating to the San Juan and Rio Piedras Tramway, in Porto Rico, and an adjunct organization known as the San Juan Light and Transit Company. The application includes a number of matters of such character as to require separate examination. These matters have been presented at different times by a series of requests, all of which relate to the same general object or project. CONFIRMATION OF THE SALE AND TRANSFER OF THE CONCESSION AND TRAMWAY TO THE APPLICANTS. On February 16, 1878, the Crown of Spain granted a royal order authorizing Pablo Ubarri to build a tramway from San Juan to Rio Piedras, Porto Rico. (Gazette of March 14, 1878.) The conditions imposed by said royal order appear to have been complied with and the road thereafter constructed and operated down to the present time. The rights created by said concession and appertaining thereto were made the subject of a contract or sale to certain citizens of the United States, and the parties thereto applied to General Brooke, then in command of the military department of Porto Rico, for confirmation of the sale. Upon this matter General Davis, in his report hereon, says (Doc. 32, pp. 3 and 4, Ins. Div.): The property with ail its easements was sold by Mr. Ubarri on November 22, 1898, to William H. Thitchener, who represented an American syndicate. The sale appears to have been in every way legal and a transfer of title was effected thereby. General Brooke was military governor at the time, and he was asked to confirm the sale, also to grant authority to change the motive power to electricity and to widen the gauge. There is no record of the action of General Brooke in this Department. The question of approving the transfer was referred to the secretary of justice for the department of Porto Rico, who reported thereon as follows (Doc. 23, Ins. Div.): Hon. MAJOR-GENERAL COMMANDING THE DEPARTMENT: In the matter referred to in accompanying communication anent the transfer of concession of the tramway between the capital and Rio Piedras, I have the honor to inform you that the central station of said tramway and a portion of its track as far as the San Antonio channel or creek, as also that lying in the neighborhood of Martin Peña channel, are built, according to my information, upon Government grounds, most of which correspond to those of the old “military zone. Through a gratuitous concession of the preceding government, the grantee of the tramway was permitted to build the station and track upon said grounds, but without transferring the title and possession thereof, same being reserved by the Government. All these lots are very valuable, and were appraised at a high price under the previous régime. I must also call your attention to the fact that another portion of the track is laid over lots belonging to residents of Santurce, who permitted the grantee to lay his track without giving up their title to the lands. Upon your approval of the transfer, as requested, it should be accompanied with a clause to the effect that said approval is given without detriment or impairment of the rights of ownership belonging to the United States over the military and public lands occupied by the station and tracks of the tramway. Yours, respectfully, JUAN HERNANDEZ LOPEZ. Whether or not the restrictions of the Spanish law requiring the assent of the Government to transfers of franchises and similar property are to be now enforced in Porto Rico, or shall be considered as obsolete and superseded by the American doctrine, that the right of alienation is appurtenant to ownership, is an administrative question, to be determined by the Secretary of War as an administrative officer. The recommendation of the secretary of justice, Señor Lopez, that the approval of the transfer "should be accompanied with a clause to the effect that said approval is given without detriment or impairment of the rights of ownership belonging to the United States over the military and public lands occupied by the station and tracks of the tramway," suggests a not improper precautionary measure to avoid possible misconception, but it is not essential to the preservation of the property rights of the United States in and to the land the proprietary rights of which were held by the Crown of Spain and passed therefrom to the United States. Upon the acquisition of title by the United States, the property rights therein could only be alienated by Congress or by an officer of the Government authorized by Congress to make such alienation. In his opinion on the application of Weeks 1394-03-28 et al. for permission to construct a wharf at Ponce, Porto Rico, the honorable the Attorney-General, says (letter July 26, 1899): I do not know of any right or power which the Secretary of War or the President has to alienate in perpetuity any of the public domain of the United States, except in accordance with acts of Congress duly passed with reference thereto. There is no legislation by Congress made for or properly applicable to the public domain in Porto Rico. The power to dispose permanently of the public lands and public property in Porto Rico rests in Congress, and, in the absence of a statute conferring such power, can not be exercised by the executive department of the Government. (22 Op. 545.) PRIVILEGES DESIRED UPON COMPLETION OF TRANSFER. The American investors, after acquiring, as they understood, the rights conferred by the concession for said tramway, organized a corporation under the laws of New York, to be known as the San Juan Light and Transit Company, which said corporation was to take over said concession and operate said tramway, using electricity as a motive power and also to distribute and sell electricity for light and other commercial purposes in San Juan. To accomplish these purposes application is made on behalf of the San Juan and Rio Piedras Tramway for the following privileges: 1. To change the motive power of the tramway to electricity. 2. To change the gauge of the road. 3. To extend said road through and upon certain streets of San Juan for a distance of about 1,500 feet, so as to form a loop. 4. To construct, maintain, and operate a branch line or spur on a portion of the property of the United States constituting the harbor front in San Juan. 5. To construct, maintain, and operate a branch line or spur, about 1,000 meters long, to reach a certain cocoanut grove on the beach near San Juan and frequented as a pleasure resort. 6. To purchase or lease from the United States 1 acre of ground, situate near San Antonio Bridge, upon which to erect an electric light and power plant. 7. In case a site for said proposed power house can not be secured from the United States, permission is sought to construct, maintain, and operate a branch line in Santurce to reach a site for the proposed power house in that locality. The application contains requests for certain other privileges, but the requests are not pressed and are considered as abandoned. Since they are referred to and reported on in the documents herein, it may be well to avoid possible confusion by stating that said requests are as follows: 8. To extend the railroad from Rio Piedras to Caguas. |