to port after performing his contract be entitled thereby to have his contract price increased?

The Quartermaster-General can not consider the loss and damage asserted to have been occasioned by the bananas awaiting shipment on the Sampson ripening during the delay of two days resulting from the Sampson deviating from its course. The showing now made does not disclose the amount of said damage, nor does it disclose that the fruit was owned by the steamship company. (See letter of Neale of May 4, 1900.) It does appear from said letter that when the Sampson grounded in the harbor it was so severely injured that it was obliged to return to New York "in ballast."

As stated above, the United States is not to be held responsible for the Sampson being stranded, and it does not appear that if the Sampson had not run aground the prospective cargo would have reached its proposed market in a marketable condition. The damage to the fruit seems to have resulted from the accident to the Sampson.

The adjudicated case known as The Akaba (54 Fed. Rep., 197) has no application to claims of the character of the one under consideration and the procedure now being taken thereon by the Department. The Akaba case was a proceeding in admiralty to secure salvage by judicial determination of the rights of individuals under maritime law. The claim under consideration is presented to the QuartermasterGeneral of the United States Army for services rendered under a contract with the United States.

The decision in the Akaba case was rendered by a reviewing court (United States circuit court of appeals, fourth circuit), and the only questions decided were (1) that the testimony showed the services rendered were salvage services, and (2) that a reviewing court will not disturb the amount of salvage awarded by the trial court "unless for some violation of just principles or for clear and palpable mistake or gross overallowance." It is a well-known rule of law that an appel late court will not reverse decrees as to the amount of salvage except for some clear mistake or gross overallowance. (8 Wall., 448; 10 Wheat., 306; 10 Pet., 108; 108 U. S., 352; 122 U. S., 256.)

I fail to see how this rule of conduct prescribed for themselves by appellate courts when reviewing the action of inferior courts in salvage cases is to be applied to the proceedings in this Department on claims of the character of the one under consideration.

One thing appears in the opinion in the Akaba case which bears upon the claim now being considered. The Akaba was rescued by the City of Birmingham. From the statement of the case it appears (54 Fed. Rep., 198):

Just after these two reached an anchorage and the Akaba had let go her anchor, but before the line between her and the City of Birmingham was let go, the latter steamship came into collision with the British steamship Gordon Castle, riding at anchor. * Both vessels suffered greatly.

*

*

Regarding this, the court say (p. 199–200):

In the evidence taken in the case items of damage caused by the collision of the salving vessel with the Gordon Castle appear. The court below alludes to a part of the expense incurred by the City of Birmingham, but in its findings it gives a lump sum without discussing this collision or the responsibility of the salved vessel therefor, or stating whether it includes these damages among the expenses. We approve the sum found, but we express no opinion on this point. Indeed, the record does not disclose to what extent the towage of the Akaba contributed to the collision.

That the court saw fit to call attention to the fact that it did not pass upon this point, and to explain that it could not do so on account of the condition of the record in that case, is an admonition, if not an instruction, that an item of damage so arising is at least doubtful even in salvage cases.

If I have made my views understood it will be seen that they limit. the discretion of the Quartermaster-General to that exercised by him in accepting or rejecting bids when actual competition is made, eliminating from consideration the special features which increase the compensation by adding a reward, and also the indirect damages alleged."

The views set forth in the foregoing report were approved by the Secretary of War, and the Quartermaster-General was instructed to settle said claim pursuant thereto.

"This matter being referred to the Comptroller of the Treasury, he determined it as follows:

"As the transport McPherson was in the possession of the United States at the time the services were rendered, it is well settled that the vessel can not be libeled in an admiralty court to sustain or enforce the claim for salvage. This claim, therefore, must be considered, if at all, as one arising under an agreement in the nature of a contract in which everything was agreed to between the parties except as to the amount of compensation.

"While there is no written contract, as required by section 3744, Revised Statutes, yet as the agreement has been executed the claimant is clearly entitled to a reasonable compensation for the services rendered.

"In the very able opinion of Judge Magoon, law officer, Division of Insular Affairs, War Department, he says:

"In order to have its claim considered by the War Department it is necessary for the steamship company to take the position that it was a contractor, acting in pursuance of an existing contract to perform the services for the McPherson. This being true, not only does the company cease to be considered a salvor, but it also eliminates from consideration the special features which give the services a salvage character, such as gallantry, skill, courage, promptitude, peril to life and property by which the service was accomplished. These are important matters to be considered in fixing the reward given to salvors, but are not considered in paying contractors for complying with their contracts. Contractors are not rewarded; they are paid.'

"The opinion also clearly sets forth the principles to be applied in determining what the reasonable value of the services has been. The simple question then is, What were the services worth to the steamship Admiral Sampson? What would reasonable and fair-minded men have charged for said services under all the circumstances of the case, applying the principles set forth by Judge Magoon?" (7 Dec. Comp. of Treas., 365, 366.)

THE SALARY OF THE GOVERNOR-GENERAL OF CUBA AND ITS PAYMENT OUT OF THE REVENUES OF CUBA.

The gentleman who is the governor-general of Cuba is an officer in the United States Army. He is discharging the duties of two separate and distinct offices---the one military and the other civil. One office is that of a major-general in the United States Army; the other is that of the head of the government of civil affairs in the island of Cuba. As a major-general of the Army he is in command of the military forces of the United States stationed in Cuba. This force consists of 443 officers and 9,152 men, making a force of 9,595 men nearly one-half the size of the Regular Army at the time the pay officers was fixed by Congress. These troops are stationed at various points throughout the island. It is doing Major-General Wood scant justice to say that in the discharge of his military duties connected with this military establishment he is earning his pay as an officer in the United States Army.

of

As the head of the government of civil affairs in the island of Cuba he is discharging a multitude of duties arising in the administration of all departments of civil government in the island.

In the conduct of the military affairs committed to his charge and keeping he renders service to the United States.

In the conduct of the affairs of civil government committed to his charge and keeping he renders service to the people of Cuba.

The conduct of the affairs of civil government are not the ordinary duties of an officer of the United States Army as specially defined by the laws creating and regulating the military establishment of the United States. On the contrary, the performance of such service by an officer of our Army is tolerated, not required, and must be justified by necessity. "He is no friend to the Republic who advocates the contrary." (Dow v. Johnson, 100 U. S., 153, 169.)

Being outside of the duties prescribed for a major-general by the law creating his office, the performance of said duties would be extra services, for which he would be entitled to extra compensation in the absence of positive legislation prohibiting such payment.

In Gratiot v. United States (15 Peters, 370, 371) the United States Supreme Court say:

It is not sufficient to establish that these items ought to be rejected, that there is no positive law which expressly provides for or fixes such allowances. There are many authorities conferred on the different departments of the Government which for their due execution require services and duties to be performed which are not strictly appertaining to or devolved upon any particular officers or which require agencies of a special discretionary nature. In such cases the department charged with the execution of the particular authority, business, or duty has always been deemed, incidentally, to possess the right to employ the proper persons to perform

the same as the appropriate means to carry into effect the required end; and also the right, when the service or duty is an extra service or duty, to allow the persons so employed a suitable compensation. This doctrine is not new in this court, but it was fully expounded in the cases of The United States v. McDaniel, 7 Peters, 1; The United States . Ripley, 7 Peters, 16; and The United States. Fillebrown, 7 Peters, 28.

But it is said that section 1269, Revised Statutes of the United States, prohibits the payment of compensation for services of the kind and character now being performed by the head of the government of civil affairs in Cuba. I can not agree to this proposition. Section 1269 is as follows:

No allowances shall be made to officers in addition to their pay except as hereinafter provided. (U. S. Rev. Stat., p. 220.)

What was the purpose of this enactment? Was it intended to limit the income of the officers of our Army from all sources whatsoever to the amount fixed by law as their pay? If an officer in the Army were to write a book on his military experiences, would he violate the law if he sold it to a publisher or the general public? Does this statute prohibit him from increasing his income? If so, it is a palpable invasion of the rights of man, for a soldier is a man, and by entering the military service surrenders only a portion of his civil rights. Manifestly the purpose of this enactment is to limit the amount which an army officer may draw from the Treasury of the United States or the money appropriated from the United States Treasury for the support of the Army. As such it is a wise and useful provision, for it enables Congress to fix the amount to be appropriated, prevents the recurrence of annual deficits, and results in a saving to this Government.

If such a purpose were not palpable, additional evidence is to be found in the fact that the provisions of section 1269 were created by an act approved July 15, 1870 (see marginal note to sec. 1269), which act was entitled—

An act making appropriations for the support of the Army for the year ending June 30, 1871, and other purposes. (16 U. S. Stats., p. 315.)

Section 1269 is a continuation of a provision of section 24 of said act. (See note to sec. 1269.) Said section 24 fixes the amount of pay of the various officers of the Army and then provides as follows:

And these sums shall be in full of all commutation of quarters, fuel, forage, servants' wages and clothing, longevity rations, and all allowances of every name and nature whatever, and shall be paid monthly by the paymaster. (16 Stats., p. 315.)

Plainly the inhibition relates exclusively to the funds of the United States in the hands of the paymasters-that is to say, the money appropriated by Congress for the support of the Army.

Are the funds created by the revenues now being collected by the

government of civil affairs in Cuba funds belonging to the United States?

Certainly they are not. These revenues are collected by the existing government of Cuba for the purpose of defraying the expenses of maintaining said government. They are in no sense military contributions or requisitions demanded by a successful invader for the use and benefit of the treasury of his own government.

The Brussels Project of an International Declaration Concerning the Laws and Customs of War provides as follows:

ARTICLE 5. The army of occupation shall only levy such taxes, dues, duties, and tolls as are already established for the benefit of the State or their equivalent, if it be impossible to collect them, and this shall be done, as far as possible, in the form of, and according to, existing practice. It shall devote them to defraying the expenses of the administration of the country to the same extent as was obligatory on the legal government.

Lieber's Instructions for the Government of Armies of the United States in the Field (G. O., 100, A. G. O., 1863) provides as follows: 10. Martial law affects chiefly the police and collection of public revenues and taxes, whether imposed by the expelled government or by the invader. * ** (Sec. 1, par. 10.)

9. The salaries of civil officers of the hostile government who remain in the invaded territory and continue the work of their offices and can continue it according to the circumstance arising out of the war-such as judges, administrative or police officers, officers of the city or communal governments—are paid from the public revenue of the invaded territory until the military government has reason wholly or partially to discontinue it. (Sec. 2, par. 9.)

If such revenues can be properly used to pay for services rendered by enemies, is it a misappropriation to use them to pay for similar services rendered by those who are not enemies?

The case of Converse v. United States (21 How., 463) seems to be directly in point on the question involved in this discussion.

That case arose as follows:

Philip Greely, jr., was collector of customs at Boston. After his death the United States brought suit against his estate. James C. Converse, the administrator of the estate, pleaded certain items of set-off amounting to $17,684.92 as commissions due him from the United States upon certain contracts, purchases, and disbursements made by him for oil and other articles for the Light-House Service of the United States, under direction of the Secretary of the Treasury. No objection was made that said amount was not the proper commission if the defendant was entitled to any; but the United States contended that the defendant had no rightful claim for said commissions, since it was conceded that being collector of customs, and, as such, having received the compensation fixed by law, to wit, $6,000 and $400 additional, each year, he was prohibited by the statutes from receiving anything more. This contention was sustained by the United States circuit