As a measure of economy, I doubt not that it would be to the advantage of this Government to have such claims settled by the Secretary of War instead of sending them to Congress. The experience in settling the claims arising during the civil war, by Congress, demonstrates the wisdom of securing settlements while a knowledge of facts and values is ascertainable." The views expressed in the foregoing report were approved by the Secretary of War, and by his direction the chief of the Division of Insular Affairs transmitted copy to the military governor of Cuba, the civil governor of the Philippine Islands, the commander of the United States military forces in the Philippine Islands, the office of the Judge-Advocate-General, U. S. A., and the chief clerk of the War Department. "The question discussed in foregoing Subdivision VI being referred to the Comptroller of the Treasury, that official determined the matter as follows: The SECRETARY OF WAR. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, SIR: I have received your letter of February 16, 1901, as follows: 'I have the honor to request your opinion on a question arising in a number of claims against the Government for compensation for private property, taken by order of the military authorities and devoted to the use of the troops, whereby proper subsistence, shelter, etc., was afforded them. "At the time the private property was taken the military authorities intended that compensation should be made, but for lack of time, inability to speak a common language, absence of the owner, or other cause, an express contract, either in writing or parol, was not formulated. There exists an implied contract to pay the fair market value of said property, which contract may be established, either by the evidence of the officer who ordered the taking or by attendant facts, circumstances, and conditions. "The question thus raised is as follows: Has the Secretary of War authority to settle and order payment of a claim for money due on an implied contract which has been performed? "At my request the law officer of the Division of Insular Affairs of this Department has prepared a report on this question in connection with the general subject of claims. I transmit herewith a copy of said report, and call your attention to Subdivision VI, wherein the question submitted is discussed. "It will greatly simplify the work of this Department in dealing with claims of the character indicated if it is determined that the Secretary of War may exercise as to implied contracts an authority such as he exercises where the contract is in parol." Subdivision VI of the report referred to by you is as follows: The question presented for my decision is, Has the Secretary of War authority to settle and order payment of a claim for money due on an implied contract which has been 'performed? It has frequently been held that where there has been an express contract, either in writing or parol, for the performance of certain things, and the consideration has MINING CLAIMS AND APPURTENANT PRIVILEGES IN CUBA, PORTO RICO, AND THE PHILIPPINES. [Submitted May 22, 1900. Case No. 1525, Division of Insular Affairs, War Department.] SIR: I have the honor to acknowledge the reference to me, with a request for a report thereon, of several letters of inquiry to the Department regarding the procedure to be followed in securing mining claims and appurtenant privileges in Porto Rico, Cuba, and the Philippine Islands. The applicants seek to secure the rights usually granted for mining purposes. These applicants being without knowledge of how to proceed, and desirous of retaining exclusive knowledge of their discoveries and the location of the minerals, do not attempt to institute proceedings, but apply to the Department for instruction. Heretofore reply has been made that the questions involved had not yet been determined by the Secretary of War. The recent law of Congress approved April 12, 1900 (31, U. S. Stats., 77), divests the War Department of jurisdiction over the affairs of civil government in Porto Rico, and by appropriate provisions confers the power of regulating the disposal of the public property in the island, of the character under consideration, upon the civil government created by said law. (Sec. 13, "Foraker Act.") not been agreed upon in advance and the work has been executed, an implied promise will be raised to pay the reasonable value of the services or supplies, and the proper officer may thereafter agree with the other party as to said reasonable value. I see no reason in drawing a distinction between a case where part of a contract is expressed and part implied and a case where all of the contract is implied, provided an implication of a contract can and does arise and in fact exists. If all of the elements necessary to constitute a binding contract actually exist, and the property is actually taken by the Government for the use of the Army, I see no reason why the amount may not be liquidated by you and the amount thereof paid in the same manner as would be done where part of the contract was expressed and part implied. The question whether the mere taking of private property for use of the Army, with or without the consent of the owner, from a citizen of the United States or an alien, in a hostile country, in and with which the United States is at war, in the presence of contending military forces, shall be considered as an act of appropriation for which the United States would not be liable, or as raising an implied contract for the purchase of and payment for the property taken, is one requiring the most careful consideration and application of the legal principles governing such cases. Whether an implied contract could arise in such cases is a matter involved in much doubt, there being many decisions of courts and the accounting officers on the subject indicating a strong leaning, to say the least, against the validity of such claims. In view of the importance of this matter and the uncertainty surrounding it you may deem it wise to transmit such claims to the Auditor for the War Department for settlement, after you have made such examination thereof as you desire to make and ascertained the value of the property taken, instead of having the claims paid by a disbursing officer with a liability of having said payments disallowed in the settlement of the officer's accounts. Respectfully, L. P. MITCHELL, Assistant Comptroller. J. D. T. Therefore this report will be confined to the questions relating to the island of Cuba and the Philippine Archipelago. It appears that the military government in Cuba has seen fit to continue the granting of mining claims in that island upon compliance with the provisions of the mining law as existing prior to the American occupation. The order of the military government in regard thereto is as follows: No. 53. HEADQUARTERS DIVISION Of Cuba, The military governor of Cuba directs the publication of the following order: The right to denounce, and, after compliance with the conditions prescribed by law, to acquire title to a mining claim in the island of Cuba, is a right assured by the provisions of the mining law as it existed in Cuba prior to the American occupation and as it has continued to be in force since. In availing themselves of this right Cubans and foreigners alike merely exercise a universal right conceded to citizens of all countries. The fact that, in the exercise of this right, exclusive ownership of the mining property results, is not sufficient to bring mining claims within the terms of the Foraker resolution prohibiting the granting of special concessions or franchises in the island of Cuba during the continuance of American authority over the island. To hold otherwise would be to hold that by a provision appended to an appropriation bill, passed by the Congress of the United States, the law of the land for the island of Cuba could be modified to the serious prejudice of many individuals, Cubans and foreigners alike; and there is no reason to believe that it was the intention of Congress to withdraw the rights and privileges previously existing in Cuba. Such action would be positively detrimental to the interests of the island in the highest degree. It is believed, therefore, that it is merely a ministerial duty on the part of civil governors of provinces to execute and deliver deeds to mining claims when the same have been properly denounced, and all the conditions prescribed by the mining laws have been complied with by the locators. ADNA R. CHAFFEE, Brigadier-General, Chief of Staff. I am not able to learn that an order of like purport has been issued by the military government in the Philippines. Inquiry at the office of Colonel Edwards, the Chief of the Division of Customs and Insular Affairs, was answered that the only information had was the following order: GENERAL ORDERS, No. 31. Office of THE UNITED STATES Manila, P. I., March 10, 1900. The mining bureau (inspección general de minas), heretofore administered as a bureau of dirección general de administración civil, is hereby reestablished and placed in charge of First Lieut. C. H. Burritt, Eleventh Cavalry, United States Volunteers, who will receipt to the chief engineer officer of the department for all records, documents, and property pertaining to said bureau. By command of Major-General Otis: M. BARBER, Assistant Adjutant-General. If the Secretary of War has authorized or approved the policy whereby grants of mining claims are made in Cuba and the Philippines by the existing governments therein, the consideration of this report is unnecessary, and the answer to the interrogatories under consideration is obvious. However, as these letters of inquiry have been referred to me for a report, I assume that the questions involved have not been finally determined by the Secretary of War, and therefore the investigation is continued. Under Spanish law, mineral in a natural state belongs to the Crown. Therefore, so much of said mineral in the territory involved as the Crown then retained passed to the United States as a result of the war and the treaty of peace. Attorney-General Griggs, in opinion on the application of Frederick W. Weeks to construct a wharf at Ponce, Porto Rico, delivered to the Secretary of War July 26, 1899, says: If constructed, the pier or wharf will be upon the public domain of the United States. I understand that under Spanish law lands under tide water to high watermark in ports and harbors in the Spanish West Indies belonged to the Crown. As Crown property they were, by the treaty of cession, transferred by Spain to the United States of America, and are now a portion of the public domain of that nation. 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. I am unable to see why the disposition of public property in the Philippines, of which the United States Government is the proprietor, should be governed by a different rule than is applied to public property in Porto Rico. The reason for the rule announced by the Attorney-General does not apply with equal force to the conditions existing in Cuba. As to public property in Porto Rico and the Philippines, the United States received title as proprietor, but in Cuba the United States received title as trustee. It does not seem probable that the existence of the trust increases the power of the Executive and the Secretary of War in the matter of alienating said trust estate. (See opinion of the Attorney-General delivered to the President September 9, 1899, as to power of local authorities of the Hawaiian Islands to dispose of portions of the public domain. 22 Op. 574.) In the opinion above referred to, the honorable Attorney-General holds that the public lands and other public property in the Hawaiian Islands can not be disposed of except upon provision therefor by Congress, for the reason that the fee title to said property is in the United 1394-03-23 States, although burdened with a trust in favor of the people of the island, and the existence of the trust does not change the rule. It is a general rule of property that title attaches somewhere to some one. That is to say, title does not, like Mahomet's coffin, hang in mid-air. It is apparent that the title to public property in Cuba has not passed to the sovereignty inherent to the people of Cuba, for that sovereignty is dormant and incapable of acquiring title. It would seem to follow that the correct theory is that the fee title to the public property in Cuba passed to the United States, burdened with a trust in favor of the future permanent government of Cuba. If the fee is in the United States, then, without regard to the burdens attached to the fee, the authority to dispose thereof is vested in Congress. The situation is the same as though the United States held the title to land in some other foreign country or territory belonging to another recognized sovereignty. In order to alienate said property, the action of Congress must be had. Granting that Congress has not authority to legislate for the civil government of Cuba does not weaken the theory advanced. There is a vast difference between owning property in a country and exercising the right to regulate the government of the civil affairs of the inhabitants of the country. An illustration may serve to make clear the point I have in mind. When a permanent government of civil affairs has been erected in Cuba, the transfer of the affairs now in the hands of the intervening government may be accomplished by the present officials, who will relinquish said affairs and place them in the hands of the officials of said new government. But can the transfer of the title to the public property in the island now held by the United States be accomplished in the same way? Will a deed from the military governor of the island divest the United States of its title? It seems to me that in order to pass the title it will be necessary either for Congress to make the transfer by legislative act or authorize some officer of the executive branch to make the conveyance, or after the new government has been established and recognized, to effect the desired purpose by treaty with the new government. If a deed from the military governor is not sufficient to complete the title of the cestui que trust, it certainly can not convey better title to a stranger. If the Secretary of War does not agree with the foregoing, and is of opinion that the existing government of civil affairs in Cuba may dispose of public property of this character in the island, the next question is, Shall the military government in Cuba exercise said authority? In this connection attention is directed to the language used by the |