on the police power, is to be determined very largely by local conditions, as to which this Department is not informed, but in regard to which the military authorities of the United States in Cuba are informed. The military governor having passed upon the question so raised, it must be presumed that in making such determination he considered said local conditions, and presumably such determination is correct. THE PROPOSAL TO CONVEY THE MARKET HOUSE NOW OWNED BY GUTIERREZ TO THE MUNICIPALITY. It is now proposed by Mr. Gutierrez to bring the entire controversy to a final conclusion by conveying the market house erected by him under said contract to the municipality, free and clear of incumbrances, canceling the contract and waiving all claim for damages thereunder and releasing the city from the debt owed him for lighting. This proposition is to be considered as independent of the contract and standing on its own merits. The questions involved are- (1) Does the municipality want the building? (2) Are the terms just, reasonable, and satisfactory? (3) Does the condition of the public funds and revenues of the municipality warrant the expenditure for such purpose? In Cuba, as in the United States, market houses are considered public improvements, for the construction of which public funds may be properly used. Whether or not the municipality of Sancti Spíritus is to be permitted to use the public funds at its disposal to secure this market house is an administrative question to be answered by the Secretary of War, and is without the purview of this report. The condition upon which Gutierrez proposes to convey the market house to the city is the payment to him of $62,277.12. This total embraces the following items: For lighting the city from 1878 to 1881, inclusive Actual cost of construction of market house. Interest on above amount for one year.. Expenses in obtaining rescission of order of suspension Total.. $15, 582. 35 18, 231.33 22, 135. 33 1, 328. 11 5,000.00 62, 277. 12 The attention of the Secretary of War is directed to the fact that the total of the liability of the city for light furnished between 1878 and 1881 is stated in the contract involved herein as being $15,582.35. The interest charge of $18,231.33 now presented by Mr. Gutierrez should receive further investigation. Mr. Gutierrez also charges interest for one year on the money expended in the construction of the market house, fixing the sum at $1,328.11. It appears from the papers on file herein that Gutierrez received revenues pursuant to the conditions of said contract from the 29th day of November, 1898, the date the market house was completed and open for business, until the 3d day of April, 1899, when his contract was suspended. It would seem proper to require him to account to the municipality for the amount so received before allowing him interest on the amount invested. It does not seem proper to require the municipality of Sancti Spíritus to indemnify him for the $5,000 which he claims to have spent in the effort to obtain a rescission of the military order suspending the execution of his contract. This order was made by a military officer of the United States, and he should look to that Government for the damages occasioned thereby. The writer is not advised as to the condition of the public funds and revenues of the municipality of Sancti Spíritus, and therefore can not furnish information in regard thereto. If the Secretary of War shall be of the opinion that the proposal to convey the market house to the municipality, and thereby terminate the controversy, merits consideration and investigation, it is suggested that it would be proper to hold said proposal in abeyance until a municipal council is elected at the forthcoming election, whereupon the matter could be referred to the new council and the subject taken up and investigated by them, the action of the municipality to be subject to the approval of the military government. The Secretary of War was of opinion that the military authori ties of the United States in Cuba had done all that was incumbent upon them in this matter, and that such matters as are continued in controversy should be determined by the courts of Cuba if the parties to the controversy could not reach an agreement. REPORT ON THE RIGHT OF THE MUNICIPALITY OF HABANA TO EXERCISE OVER PROPERTY OWNED BY SAID CITY THE RIGHTS WHICH BY LAW BELONG TO THE PEACEFUL POSSESSION OF PROPERTY. [Submitted April 16, 1901. Case No. 3814, Division of Insular Affairs, War Department.] SIR: I have the honor to acknowledge and comply with your request for a report on a matter arising as follows: The municipal authorities of Habana, Cuba, seek to enter into an agreement with one Tomas Mazzantini y Equia, as president of the association known as "Fronton Jai Allai,” which will permit said association to occupy for a period of ten years a certain piece or parcel of ground owned by the city of Habana, and situate in the block of said municipality comprised between the streets named Concordia, Lucena, Virtudes, and Marqués Gonzales. The contemplated agreement provides that said Mazzantini, at his own expense, shall erect a building on said ground to be used as a "Fronton," or hand-ball court, wherein the public are to be permitted to play hand ball upon payment of a fee. As compensation for such use and occupation of said land the agreement provides that, at the expiration of said ten years' term, the building so constructed becomes the property of the city of Habana. As originally drawn, the agreement bound the municipality for a period of ten years to abstain from granting a like privilege of constructing a "Fronton" to any other individual or association. This provision appears to have been eliminated from the agreement, but is understood as being included in the request for a report and will therefore be considered. It appears that this agreement was first authorized by the municipal council of Habana in April, 1898. This action was ratified and affirmed on March 15, 1900. The contract so authorized was reduced to writing and signed April 27, 1900, and was thereafter presented to the military governor of Cuba for his approval, in compliance with the provisions of paragraph 3, article 81 of the municipal law. Thereupon the question arose Does said agreement violate the provisions of the legislation known as the "Foraker amendment?" The military governor of Cuba refers this inquiry to the Secretary of War, and in his letter of reference sets forth the following: The municipal council, duly elected by the people, enters into a business arrangement which it deems to be to the advantage of the municipality, and which is to the advantage of the municipality, as it obtains at the end of ten years a building worth about $8,000 * * * The whole transaction has been carried on in good faith and I can not believe that it was the intention of the Foraker law to prohibit legitimate transactions of this sort, Under the existing Spanish law the approval of the Governor-General is required, but it is technical. If the Foraker law is to be interpreted as rigidly as within indicated, all business involving municipal as well as all other insular consent is practically at an end. The attention of the Secretary is called to the fact that a copy of said proposed agreement is not included in the papers submitted, and therefore its provisions can not be stated with definiteness. From the papers submitted it appears that said agreement provides for two separate and distinct matters, although both are involved in one transaction. These matters are 1. The use and occupation of certain property owned by the municipality. 2. The obligation of the municipality to abstain for ten years from granting similar privileges to others. The provisions of said agreement relating to the disposition of the property constitute a lease for a period of ten years of property belonging to the city upon terms satisfactory to the parties whose rights are involved. To lease real estate is an ordinary right of a proprietor. In regard to rights of this character in Cuba, the treaty of peace provides as follows. (Art. VIII): * * * * * * the relinquishment * can not in any respect impair the rights which by law belong to the peaceful possession of property of all kinds of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other association having legal capacity to acquire and possess property in the aforesaid territories. In addition to stipulating that the "rights which belong to the peaceful possession of property" shall not be impaired, the treaty prescribes a rule of conduct for the United States during the period of occupation. This rule is set forth in Article I as follows: And as the island (Cuba) is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property. Since the United States voluntarily consented to be bound by them, it becomes necessary to ascertain what obligations relating to the protection of property and property rights are imposed by international law upon a military force maintaining military occupation of territory. The governmental forces of the United States (military and civil) now in Cuba are engaged in maintaining an occupation of the island and not a conquest. Occupation is the temporary retention of territory, while conquest is the definite appropriation of it. Under the modern law of nations an occupying power is, as stated by Mr. Hall, "forbidden, as a general rule, to vary or to suspend laws affecting property and private personal relations." (Hall on International Law, 4th ed., chap. 4, par. 155.) Halleck states the law, as follows: As military occupation produces no effect (except in special cases and in the application of the severe right of war, by imposing military contributions and confiscations) upon private property, it follows, as a necessary consequence, that the ownership of such property may be changed during such occupation, by one belligerent, of the territory of the other, precisely the same as though war did not exist. The right to alienate is incident to the right of ownership, and, unless the ownership be restricted or qualified by the victor, the right of alienation continues the same during his military possession of the territory in which it is situate as it was prior to his taking the possession. A municipality or corporation has the same right as a natural person to dispose of its property during a war, and all such transfers are, prima facie, as valid as if made in time of peace. If forbidden by the conqueror, the prohibition is an exception to the general rule of public law and must be clearly established. (Halleck's Int. Law, 3d ed., chap. 33, par. 12, p. 448.) I do not think the legislation known as the Foraker amendment is to be construed as a prohibition of the right of a municipality to exercise the ordinary rights of ownership or contract. An interpretation thereof which would prevent the municipality of Habana from entering into the agreement under consideration would also preclude the city from entering into agreements for other municipal services, such as cleaning and lighting the streets, employing municipal officers and agents, constructing public works, or making municipal improvements; for all such agreements create certain rights which are property. Indeed, such interpretation would prevent a private individual as well as a municipality from executing a grant of conveyance of his private property. I understand the Foraker amendment to be a voluntary renouncement by the United States of the fruits of conquest in Cuba. It restricted the United States to the recent rule of modern times regarding military occupation, and precluded the exercise of the rights over public and private property accorded by the ancient rule to a victor in war who had completed a conquest. By the Teller resolution the United States disclaimed an intention to assume permanent sovereign rights in Cuba, and by the Foraker amendment the United States surrendered the rights of a conqueror and voluntarily limited its authority to that of a temporary occupant under the modern law of nations. As so interpreted the Foraker amendment is in harmony with the treaty of peace and international law; otherwise, it is at variance with both. Historically, we know that one purpose of the Foraker amendment was to preserve the species of property therein referred to until such time as the rights therein and thereto could be exercised by governmental agencies selected by the inhabitants of Cuba. That purpose is accomplished as to municipal rights and property in Cuba. To hold that said legislation prevents the municipalities of Cuba from exercising the common ordinary rights of ownership over property which belongs to them is to convert a beneficent measure into an instrument of oppression. The right which the city of Habana seeks to exercise is a personal right appertaining to property of which the city is the absolute owner, and therefore is not subject to the restrictions of said amendment.' II. The provisions of the agreement as originally contemplated, creating an obligation of the municipality to abstain for ten years from granting to others a similar privilege for a " Fronton " present another and a different question. It appears from the papers forwarded to the Department that these provisions have been eliminated. Ordinarily, the attention of the Secretary is not to be directed to such matters; but their consideration affords an opportunity to make a comparison which may elucidate the proposition actually involved. As already stated, a copy of said proposed agreement has not been forwarded to the War Department. From what appears in the papers submitted, it is difficult to determine whether the agreement was intended to bind the city (1) not to grant to others the privilege of 1 See ante, p. 374 et seq. |