the military governor of Cuba, made herein, would commit the United States to the principle advanced by Spain, that the duty of the sovereign to provide for the carrying out of court sentences in criminal cases attached to the territory in which the court was sitting at the time the sentence was imposed, and passed with the sovereignty.

To what extent, if at all, this request, if made, would embarrass the State Department in the negotiations now in progress respecting a new or additional protocol between the United States and Spain, I am not advised. It seems plain, however, that if the matter is referred to the Secretary of State he should be left entirely free to exercise his judgment and discretion as to the propriety and advisability of presenting the request to the Government of Spain.

Further proceedings were had in this matter, as follows:

JUNE 5, 1901.

SIR: The War Department has received a communication from Maj. Gen. Leonard Wood, U. S. V., military governor of Cuba, regarding the commutation by the existing courts of Cuba of sentences imposed by the courts of Cuba under Spanish dominion upon persons convicted of criminal offenses committed in Cuba, where the convicts are serving out said sentences in prisons situated in territory now subject to the sovereignty of Spain.

A copy of said communication is herewith transmitted. Also copy of letter to the military governor of Cuba, dated May 13, 1901, from the Department of State and government for Cuba, together with the original eight certificates showing the commutation of eight sentences of persons situated as above set forth.

Also copy of a report on said matter by the law officer of the Division of Insular Affairs, War Department.

I do not feel at liberty to request you to present this matter to the Government of Spain. I submit the matter for your consideration and determination. If any further information in regard thereto or further action thereon by the authorities in Cuba is desired by you, please advise me. If the War Department can render no further service in this matter, I await your decision as to the course to be pursued.

Very respectfully, yours,

The SECRETARY OF STATE.

ELIHU ROOT, Secretary of War.

DEPARTMENT OF STATE,

Washington, June 28, 1901.

SIR: I have the honor to acknowledge the receipt of your letter of the 5th instant, inclosing certain certificates from Cuban courts showing the commutation of sentences imposed on Ramon Ulque y Mesa, Francisco Risco Orihuela, Florentino de la Paz, Pascual Campos, Santiago Ibañez, Candido Figueroa y Acosta, Tomás Sanchez or Gonzales, and Isidoro Caballero Lozano, who were convicted of criminal offenses committed in Cuba and are now serving out those sentences in Spain.

The United States chargé d'affaires ad interim at Madrid has been directed to bring these papers to the attention of the Spanish Government, referring to the request of the military government of Cuba that these men may have the benefit of the reduction of sentence and to ask to be advised as to the action taken.

I have the honor to be, sir, your obedient servant,

DAVID J. HILL, Acting Secretary.

The SECRETARY OF WAR.

IN THE MATTER OF THE CONTRACT BETWEEN THE UNITED RAILWAYS OF THE HABANA AND REGLA WAREHOUSES (LIMITED) AND THE CUBAN AND PAN-AMERICAN EXPRESS COMPANY.

66

[Submitted December 18, 1900. Case No. 1366, Division of Insular Affairs, War Department.]

SIR: I have the honor to acknowledge your verbal request for an expression of views" on this controversy, and to comply therewith. This Department is not officially advised that complete and final action on this controversy has been had by the administrative authorities in Cuba. Governor-General Wood has made an order annulling the contract involved. Subsequently, he referred the matter to the administrative council of the island of Cuba. Informal advices are received by the Department from the express company that the administrative council has sustained the legality and propriety of the order annulling the contract. The complete record of the administrative proceedings herein have not yet been received at the Department, nor has a formal appeal been regularly presented to the Secretary of War. Therefore, a formal report on the matters involved is not presented.

A copy of the contract regarding which this controversy exists may be conveniently secured by reference to page 37, et seq., of the brief filed herein by Messrs. Coudert Brothers on behalf of the express

company.

An examination of this contract will, in my judgment, disclose that it is of a kind and character which would be sustained in the Federal courts of the United States. (See Express Company cases, 117 U. S., pp. 1-29.)

The objections urged against said contract by the Cuban authorities are as follows:

First. That said contract creates a monopoly by giving to the Cuban and Pan-American Express Company the exclusive privilege of conducting an express business on the lines of said railway.

In the Express Company cases above cited, the United States Supreme Court held (syllabus):

Railroad companies are not required, by usage or by the common law, to transfer the traffic of independent express companies over their lines in the manner in which such traffic is usually carried and handled.

Railroad companies are not obliged, either by the common law or by usage, to do more as express carriers than to provide the public at large with reasonable express accommodations; and they need not, in the absence of a statute, furnish to all independent express companies equal facilities for doing express business upon their passenger trains. (117 U. S., pp. 1-2.)

It does not appear that any other express company is desirous of engaging in the express business on the lines of said consolidated

railway. The action of the Cuban authorities seems to have been the determination of an abstract proposition, and not in an existing case. Second. The Cuban authorities assail this contract on the ground that it is therein attempted to relieve the railway company from transporting express matter, and assert that this violates the provisions of the Spanish law and the charter of the railway company requiring the railway company itself to transport the express matter.

The opening paragraph of the contract recites as follows:

Nothing herein contained shall bind the railway company to do any act forbidden or required by its concession or the laws from time to time in force in Cuba.

The provision complained of is found in the fifth paragraph of the contract. That paragraph starts out with a limitation as follows: The railway company agrees, so far as it lawfully may—

And closes as follows:

It is, however, expressly stipulated by the railway company that the present agreement is in no way meant to alter, modify, or disturb the duties imposed on the railway company as to mails and other services that may be required by the Government under the terms of the concession.

The contract contemplates that the railway company may accept express matter for transportation over its lines, and makes provision that such express matter, being received by the railway company, will be turned over to the express company and handled by the employees of the express company instead of by the employees of the railway company. I can see nothing in this stipulation calling for drastic measures by the Government.

Third. The Cuban authorities further object to this contract because it is therein stipulated that the express company assumes to pay all losses or damages to persons or property occasioned during transportation over said railway. The objection made is that thereby the railway company avoids liability. The complete answer to this objection is found in the fact that the railway company can not avoid its liability by the contract with the express company, nor does it appear that the contract undertook such avoidance. The contract appears to be intended to provide indemnity for the railway, and not a limitation on the railway's liability.

Fourth. The Cuban authorities also object to this contract on the ground that it is therein provided that the express company may charge one and one-half the rates for transportation which were in existence at the time the contract was created, and that such rates were put in force in an illegal and unlawful manner. If this objection exists, it would seem that the proper remedy is to regulate the rate and require the acceptance of the lawful amount instead of annulling the contract. The express company represents that it has abandoned the increased rate and now transports express matter at the same rate

which prevailed prior to the creation of the contract, and in addition collects and delivers express matter without extra charge.

From what I am able to learn, both from the papers on file and from information informally received, it appears that after the creation of the contract the express company exercised the rights secured thereby in such manner as to be abusive. They exacted the payment of rates higher than those theretofore prevailing and required their employees. to pass through trains and compel the passengers to surrender hand baggage to the express company and pay a fee for the transportation thereof, and in numerous ways sought to increase their business. This occasioned great dissatisfaction, and in consequence thereof the Cuban authorities felt required to protect the public from the action of the express company. Thereupon the administrative authorities saw fit to annul the contract. The express company now represents to the department that these objectionable practices have been discontinued.

I entertain the view that the administrative authorities of Cuba, in seeking a remedy to correct the abuses growing out of this contract, should have confined themselves to the authority to regulate the conduct of the business and not attempt to exercise the power to abrogate personal contracts.

Copy of the foregoing report was transmitted to the military governor of Cuba for his consideration in determining the questions discussed. The action of the government of Cuba was as set forth in the following order:

No. 14.]

HEADQUARTERS DEPARTMENT OF CUBA,
Habana, January 15, 1901.

The military governor of Cuba announces the following decision in the matter of the validity of the contract existing between the United Railways of Habana and the Cuban and Pan-American Express Company:

Whereas the legal representative of the Cuban and Pan-American Express Company has stated that the express company only claims to be, under its contract, the instrument or agent for a special object of the railroad company;

Whereas no delegation or alienation of the powers or responsibilities of the railroad company have been made to the express company whereby the railroad company is in any way relieved of the responsibilities imposed upon it by the laws in force in matters of transportation;

Whereas the railroad company, under the existing contract, must receive express matter from any other company or private person who may present it for transportation and transport it in accordance with the tariffs prescribed by the railroad laws: Therefore the military governor decides that the contract existing between the United Railways of Habana and the Cuban and Pan-American Express Company is valid and lawful.

1394-03-33

H. L. SCOTT, Adjutant-General.

IN THE MATTER OF THE PROTEST OF M. F. VIONDI, AN INHABITANT OF THE ISLAND OF CUBA AND AN ATTORNEY AT LAW, AGAINST THE ORDER OF THE MILITARY GOVERNOR OF CUBA, DATED JULY 29, 1899, BEING NO. 184, HEADQUARTERS DIVISION OF CUBA.

[Submitted August 29, 1899. Case No. 701, Division of Insular Affairs, War Department.]

The order against which this protest is made is as follows: HEADQUARTERS DIVISION OF Cuba, Habana, July 29, 1899.

No. 124.

The military governor of Cuba directs the publication of the following order: I. Hereafter all proceedings known as contencioso-administrativos pending before the sala de lo civil of the audiencia of Habana, which may have been established against decisions rendered prior to January 1, 1899, by authorities under Spanish sovereignty, are hereby suspended. The said sala of the audiencia shall declare all such cases closed and order that no further action be followed to reach the final decision.

II. Immediately upon issuing such orders, against which there shall be no recourse, said sala shall require that the administrative record of proceedings, called for by the sala, in virtue of the establishment of the recourse contencioso, be forwarded to the department of justice and public instruction. Said tribunal shall, however, retain the record of proceedings that may have taken place before the same.

III. The parties interested in said recourses (contencioso administrativos) may appear before the military governor prior to September 1, 1899, which date will not be extended, to solicit that the decision excepted rendered by the Spanish authorities be revised and that the question which originated the claim be decided. Said petitions shall be filed with the department of justice and public instruction, which will forward them with a report to the military government. All interested parties failing to present their claims within the period above specified shall forfeit their right to claim of any kind.

IV. The decision which the military government may render, in the matter of claims mentioned in the preceding article, shall be with respect only to the fundamental and essential parts of the questions involved in the decisions of the Spanish authorities and against which the aforesaid recourses (contencioso administrativos) may have been established.

The revision for which petition may be made, according to the provisions of the preceding article, shall not extend to matters relating to infringements of a formal character, whether these refer to the procedure or involve the competency or incompetency of the authorities or functionaries rendering the decisions to which exception is made.

All petitions for revision which refer solely to such matters shall be denied by the department of justice and public instruction, and no action shall be taken on them. ADNA R. CHAFFEE, Brigadier-General, Chief of Staff.

To properly understand the purpose and effect of this order it is necessary to review the Spanish judicial procedure to which said order relates and is intended to supplant.

In Spain and her colonies there is established a review of certain administrative actions by appeal to the courts from the decisions of