tained the claims of Doria, giving him provisional authority to remove the phosphates upon the payment of a yearly rental of 100 pesos and 25 cents per ton on each ton exported. Subsequently a deed of ownership was "approved" by General Henry, granting a concession of the island to Doria for the purpose of utilizing the phosphate deposits existing in said isle in accordance with the Spanish mining laws, upon the condition that he pay for the land and its products such excise or tax as the law on the subject may establish.

It is this deed or concession which General Davis now urges should be annulled.

I have heretofore submitted a report on the general questions involved herein, to which the attention of the Secretary of War is directed. (See report "In re Mining Claims and Appurtenant Privileges in Cuba, Porto Rico, and Philippine Islands," dated May 19, 1900.)

In his letter to the Secretary of War, dated May 4, 1900, General Davis states that he has consulted with Governor Allen and that both he and the Governor are in doubt as to who has jurisdiction to annul said grant.

Under the rule announced by the Attorney-General in the Valdez matter, and in his opinion on the application of Weeks to construct a wharf on Government property in Porto Rico, there is no occasion for "annulling" the grant under consideration, for it was void when made by General Henry.

If this view is accepted the only question is, Who has the authority to prevent the spoliation of property owned by the United States in Porto Rico-the civil governor or the military commander?

The law of Congress establishing a civil government in Porto Rico, approved April 12, 1900, provides as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of this act shall apply to the island of Porto Rico and to the adjacent islands and waters of the islands lying east of the seventyfourth meridian of longitude west of Greenwich, which were ceded to the United States by the Government of Spain by treaty entered into on the tenth day of December, eighteen hundred and ninety-eight; and the name Porto Rico, as used in this act, shall be held to include not only the island of that name, but all the adjacent islands, as aforesaid.

Section 13 of said act is as follows:

SEC. 13. That all property which may have been acquired in Porto Rico by the United States, under the cession of Spain in said treaty of peace, in any public bridges, road houses, water powers, highways, unnavigable streams and the beds thereof, subterranean waters, mines, or minerals under the surface of private lands, and all property which at the time of the cession belonged, under the laws of Spain then in force, to the various harbor-works boards of Porto Rico, and all the harbor shores, docks, slips, and reclaimed lands, but not including harbor areas or navigable waters, is hereby placed under the control of the government established by this act to be administered for the benefit of the people of Porto Rico; and the legislative assembly hereby created shall have authority, subject to the limitations imposed upon all its acts, to legislate with respect to all such matters as it may deem advisable.

From this it seems clear to my mind that the duty of preventing unlawful appropriations of said public property devolves upon Governor Allen as the present head of the government of the island, and to enforce such protection he may lawfully call upon the military commander of the United States forces in the island to aid him in such endeavor.

If the views expressed are accepted by the Secretary, the proper procedure for the War Department is to return all the papers herein to General Davis, and advise him that the Secretary is of opinion that the commanding officer of the United States military forces in Porto Rico is now without authority, in the first instance, to exercise the powers of the United States in said matter, such authority and resulting duty having been conferred upon the civil governor by Congressional enactment.

By direction of Hon. George D. Meiklejohn, Assistant Secretary of War, on June 4, 1900, the papers in the case were returned to the officer in command of the military forces of the United States in Porto Rico, indorsed as follows:

The Assistant Secretary of War is of the opinion that the commanding officer of the United States military forces in Porto Rico is now without authority, in the first instance, to exercise powers in the case, such authority and resulting duty having been conferred upon the civil governor by Congressional enactment.

You are, therefore, authorized to transmit these papers direct to the governor of Porto Rico.

A copy of the opinion, as rendered by the law officer of the Customs and Insular Divison, in which the Department concurs, is forwarded herewith, as it may afford information in the consideration of the case.

By order of the Secretary of War.

CLARENCE R. EDWARDS, Acting Assistant Adjutant-General.

IN RE CONTRACT WITH WOOLF ET AL. REGARDING THE MANUFACTURE AND USE OF ELECTROZONE FOR PUBLIC PURPOSES IN HABANA, CUBA.

[Submitted December 31, 1900. Case No. 2086, Division of Insular Affairs, War Department.]

SIR: I have the honor to acknowledge the receipt of your request for a report on the above-entitled matter, and to respond thereto as follows:

This application is a request that the Secretary of War

1. Assent to the action of the original contractors, who have sold and assigned a one-third interest in said contract to the Electrozone Commercial Company, New York.

2. Recognize said Electrozone Commercial Company as a party to the contract.

3. Permit said assignment to be recorded in such manner and place as will permit said assignee to receive directly from the United States Government one-third of the several payments under said contract as they shall become due and paid.

This application has been referred to the military governor of Cuba, who returns it without comment or recommendation. The military governor of Cuba referred the application to W. J. Barden, first lieutenant, Corps of Engineers, U. S. A., acting chief engineer, Division of Cuba, and subsequently the matter was referred to Maj. Edgar S. Dudley, judge-advocate, Division of Cuba. From their indorsements it appears that they entertain the view that said assignment is governed by the provisions of section 3737, United States Revised Statutes. (See third and fifth indorsements, Doc. 1.) The military authorities of Cuba apparently have no objection to favorable action on this application by the Secretary of War; at least no objection is made.

If the Federal Government of the United States is one of the parties in interest and bound by the contract involved, then the assignment is governed by said section 3737 without regard to the place of performance. If the military government of Cuba or the municipal government of Habana is the real party in interest and bound by said contract, then I see no reason why the action of the Secretary of War should be called for in the first instance. If the contract is with the government of civil affairs in Cuba, that character should be preserved. If the Secretary of War shall now recognize the contract as being with the Federal Government of the United States, complications may hereafter arise.

The contract provides for the purchase of certain "positive electrodes" and the right to use them in Habana, Cuba, in the manufacture of "electrozone" for public use of said city, and to pay a royalty on the electrozone so produced at the rate of one-twentieth of 1 cent per gallon for the first 50,000 gallons per day of twenty-four hours and one-fiftieth of 1 cent for each gallon in excess of 50,000 gallons per day.

“Electrozone” is made from sea water, and appears to be a fluid highly charged with chlorine. It is used by the authorities in Cuba to promote the sanitation of Habana. The contract under consideration recites:

***

This agreement, entered into this 10th day of February, 1899, between William Murray Black, lieutenant-colonel, chief engineer, U. S. V., Department of Habana, of the first part, and Albert Edward Woolf and Rosamond Woolf, both of New York City, * * * of the second part, witnesseth, that William Murray Black, for and on behalf of the Department of Habana, and the said Albert Edward Woolf and Rosamond Woolf, do covenant and agree

* * *

The written instrument is signed as follows:

In witness whereof the parties aforesaid have hereunto placed their hands the date first hereinbefore written.

This instrument, so executed, was approved as follows:

Approved, February 11, 1899.

WILLIAM LUDLOW,

Governor of Habana.

In determining the character of a contract, the subject-matter and the situation of the parties are to be fully considered with regard to the sense in which language is used.

At the time this contract was entered into (February 10, 1899) the city of Habana was subject to military occupation by the military forces of the United States. As a result of this occupation the administration of the civil government devolved upon the occupying force. This requirement included the administration of municipal affairs as well as the affairs of the General Government. The services required for such administration were to be performed by such persons as were designated therefor by the commander of the occupying force. Such commander designated William Ludlow, brigadier-general, U. S. V., as the head of the municipal government of Habana, and William M. Black, lieutenant-colonel, U. S. V., as chief engineer for said municipality. In the exercise of the powers thus acquired, and in the discharge of duties arising from the necessities of the municipality of which they were officials, this contract was entered into. The intention of the parties (which at all times is the pole-star of contract construction) was manifestly to render a service. to the municipality. The service was of such character, being the sanitation of the principal seaport of the island and the promotion of the national commerce, that it was deeemed just that the expense should be paid from the island funds. But the contract as entered into created an obligation resting upon the municipality. Therefore it required and received the approval of William Ludlow, governor of Habana, and did not seek nor secure the approval of the major-general in command of the forces of the United States in Cuba, who at that time performed the functions of military governor, nor the approval of the Secretary of War.

The fact that said contract was drawn upon a blank commonly used by the officers of the Engineer Corps, United States Army, or in

manner and form prescribed for the use of said officers, does not change the party to the obligation nor impose the obligation upon the United States.

If the contractual obligation rests upon the Habana municipality or upon the military government of Cuba, it follows that, although the Secretary of War may act in matters relating thereto, it is the established practice of the Secretary to refrain from such action as much as possible and to confine the administration of said governments to the local officials.

I therefore recommend:

1. That the Secretary of War decline to recognize this contract as one to which the Federal Government of the United States is a party. 2. That the application be returned to the military governor of Cuba, and he be advised that the Secretary of War is of opinion that said contract relates exclusively to the administration of certain affairs of the civil government of Cuba, and should be dealt with as such by the military governor.

3. That the applicant be advised of the action taken.

By direction of the Secretary of War on January 10, 1901, the papers in this case were returned to the military governor of Cuba with the information

That the Secretary of War declines to recognize this contract as one to which the Government of the United States is a party, and that he is of opinion that said contract relates exclusively to the administration of certain affairs of the civil government of Cuba and should be dealt with by the government of the island.

IN THE MATTER OF THE CLAIM OF ANTONIO ALVAREZ NAVA Y LOBO FOR THE SUM OF THIRTY THOUSAND DOLLARS DAMAGES FOR BEING DEPRIVED OF THE OFFICE OF NOTARY, HELD BY HIM IN SAN JUAN, PORTO RICO, UNDER THE SPANISH RÉGIME.

[Submitted September 20, 1899. Case No. 853, Division of Insular Affairs, War Department.]

This is a claim for damages in the sum of $30,000 asserted against the provisional government of Porto Rico.

The claimant asserts that his damages arose as follows (see "Memorandum" of claimant):

In 1896 the claimant, Antonio Alvarez Nava, was appointed notary in the city of San Juan. He claims that he paid 23,000 pesos to secure the property rights of said office, and incurred other expenses in connection therewith sufficient to make the total expenditure amount to 30,000 pesos. That in November, 1898, he was required by the supreme court of Porto Rico to renounce his Spanish nationality, and