The rights of private individuals recognized and protected by
the Treaty of 1898 with Spain did not include the salability of
official positions, such as
procurador, nor did the United
States intend to so restrict its own sovereign authority that it
could not abolish the system of perpetual and salable offices which
is entirely foreign to the conceptions of this people.
Even if Congress did not intend to modify the Treaty of 1898 by
the Foraker Act of April 12, 1900, 31 Stat. 77, if that act is
inconsistent with the treaty, it must prevail, and be enforced
despite any provision in the treaty.
Hijo v. United
States, 194 U. S. 315.
Congress recognized the action of the military authorities in
Porto Rico in 1898 in abolishing the office of
procurador
and validated it by the provision in the Foraker Act of 1900
continuing the laws and ordinances then in force except as altered
and modified by the military orders in force.
The abolition of a perpetual and salable office, established
under the Spanish law in Porto Rico prior to its cession to the
United States, does not violate any provision of the Constitution
or infringe any right of property which the holder of the office
can assert against the United States.
O'Reilly v. Brooke,
209 U. S. 45.
42 Ct.Cl. 458 affirmed.
Page 216 U. S. 171
MR. JUSTICE HARLAN delivered the opinion of the Court.
The appellant, an inhabitant and citizen of Porto Rico, seeks to
recover from the United States the value of a certain office held
by him in that island before and during the war with Spain, of
which office, it is alleged, he was illegally deprived by the
United States. A demurrer to the complaint was sustained, and
judgment given for the United States, the
Page 216 U. S. 172
opinion of the Court of Claims being delivered by Chief Justice
Peelle. 42 Ct.Cl. 458, 472.
The complaint, which, on demurrer, was adjudged to be bad,
presents -- using substantially the words of the complaint -- the
following case:
In the year 1878, the claimant, Sanchez, purchased from one
Florenzio Berrios y Lopez, for a valuable consideration, the office
known as "numbered
procurador [solicitor] of the courts of
first instance of the capital of Porto Rico," at Guayamo, in
perpetuity, and in the same year the Governor General of Porto Rico
issued a provisional patent in his favor. In 1881, the claimant's
tenure of the office was approved and confirmed, and a final patent
therefor was issued by the King of Spain, in accordance with the
laws, practice, and custom of Spain and Porto Rico governing the
sale, surrender, and transfer of such an office. The claimant, it
is alleged, thereby became vested with all the legal rights and
privileges appertaining to the office.
From the date of the provisional patent issued to him until, as
will be presently stated, he was deprived of his office, August
31st, 1899, the claimant exercised all the rights and privileges
belonging to the office of
procurador or solicitor. Under
the laws of Spain and Porto Rico, it will be assumed, the office
was transferable in perpetuity, and vested the incumbent with
exclusive rights and privileges, and, as a consequence thereof, the
claimant was entitled, under the laws of Spain in force in Porto
Rico, during all the time he held the office, to perform its duties
and receive its fees and emoluments, which, prior to August 31st,
1899, averaged, it is alleged, more than $200 per month, of which
he could not be legally deprived except by due process of law.
On the tenth day of December, 1898, a Treaty of Peace between
the United States and Spain was concluded, and having been duly
ratified by the respective countries, was duly proclaimed April
11th, 1899. The treaty contained these provisions:
"Spain cedes to the United States the Island of
Page 216 U. S. 173
Porto Rico and other islands now under Spanish sovereignty in
the West Indies, and the Island of Gaum in the Marianas or
Ladrones."
Art. 7.
"And it is hereby declared that the relinquishment or cession,
as the case may be, to which the preceding paragraph refers, cannot
in any respect impair the property or 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 associations having legal capacity to
acquire and possess property in the aforesaid territories renounced
or ceded, or of private individuals, of whatsoever nationality such
individuals may be."
Art. 8.
A military government was organized in Porto Rico and was
maintained there from October, 1898, up to and after April 30th,
1900. On the latter date, General Davis, as military governor,
issued what is known as General Order 134, containing these, among
other, paragraphs:
"XI. The office of solicitor ('
procurador') is
abolished. Those who have heretofore practiced as such before any
court, and are of good repute, shall, in default of lawyers, have
the right to be appointed municipal judges or clerks of municipal
courts."
"XII. Hereafter, litigants who do not appear personally shall be
represented before the supreme court and district courts
exclusively by a lawyer, no powers of attorney being necessary
therefor; it shall be the duty of the courts to suspend from the
practice of his profession any lawyer who shall, without authority,
assume to represent a litigant; but this shall not affect the civil
or criminal liability which such lawyer may thereby incur. In the
municipal courts, litigants may represent themselves or may be
represented by an attorney in fact resident of the place."
"XIII. For the purpose of conducting the proceedings, lawyers
may make use of such agents as they may by writing designate to the
court."
That order was issued without notice to claimant and without any
complaint being made as to the manner in which he was exercising
his rights or discharging his duties.
Page 216 U. S. 174
On the twelfth day of April, 1900, Congress passed (to take
effect May 1st, 1900) what is known as the Foraker Act, temporarily
to provide revenues and civil government for Porto Rico, and for
other purposes. That act contained this provision:
"SEC. 8. That the laws and ordinances of Porto Rico now in force
shall continue in full force and effect, except as altered,
amended, or modified hereinafter, or as altered or modified by
military orders and decrees in force when this act shall take
effect, and so far as the same are not inconsistent or in conflict
with the statutory laws of the United States not locally
inapplicable, or the provisions hereof, until altered, amended, or
repealed by the legislative authority hereinafter provided for
Porto Rico, or by act of Congress of the United States."
31 Stat. 77, 79, c. 191, April 12, 1900.
The reasonable value, the claimant alleges, of the
"transferable" or "numbered
procurador of the courts of
first instance of the capital of Porto Rico," in perpetuity, was
$50,000, for which amount he asks judgment. No compensation has
ever been made to claimant for the loss of his office, and no
action has been taken on his present claim, either by Congress or
by any department of the United States government.
Such is the case made by the claimant in his petition.
The claimant proceeds in his petition on the ground that the
effect of the eighth section of the Act of Congress of April 12th,
1900, was to confiscate, finally and effectually, without
compensation to him, the office which he claims to have lawfully
purchased in perpetuity prior to the occupation of Porto Rico by
the military forces of the United States, and the cession of that
island to this country; which confiscation, he insists, could not
have been legally done without violating the treaty between the
United States and Spain which was in force when the Act of 1900 was
passed.
We do not think that the present claim is covered by the treaty.
It is true that a treaty negotiated by the United States is a part
of the supreme law of the land, and that it is
Page 216 U. S. 175
expressly provided in the treaty in question that it "cannot in
any respect impair the property or rights which by law belong to
the peaceful possession of property of all kinds . . . of private
individuals." But clearly those provisions have no reference to
public or
quasi-public stations, the functions and duties
of which it is the province of government to regulate or control
for the welfare of the people, even where the incumbents of such
stations are permitted, while in the discharge of their duties, to
earn and receive emoluments or fees for services rendered by them.
The words in the treaty, "property . . . of private individuals,"
evidently referred to ordinary private property, of present,
ascertainable value, and capable of being transferred between man
and man.
When the United States, in the progress of the war with Spain,
took firm military possession of Porto Rico, and the sovereignty of
Spain over that island and its inhabitants and their property was
displaced, the United States, the new sovereign, found that some
persons claimed to have purchased, to hold in perpetuity, and to be
entitled, without regard to the public will, to discharge the
duties of certain offices or positions which were not strictly
private positions in which the public had no interest. They were
offices of a
quasi-public nature in that the incumbents
were officers of court, and in a material sense connected with the
administration of justice in tribunals created by government for
the benefit of the public. It is inconceivable that the United
States, when it agreed in the treaty not to impair the property or
rights of private individuals, intended to recognize, or to feel
itself bound to recognize, the salability of such positions in
perpetuity, or to so restrict its sovereign authority that it could
not, consistently with the treaty, abolish a system that was
entirely foreign to the conceptions of the American people and
inconsistent with the spirit of our institutions. It is true that
Congress did not, we assume, intend by the Foraker Act to modify
the treaty, but, if that act were deemed inconsistent with the
treaty, the act would
Page 216 U. S. 176
prevail, for an act of Congress passed after a treaty takes
effect must be respected and enforced despite any previous or
existing treaty provision on the same subject.
Ribas y Hijo v.
United States, 194 U. S. 315,
194 U. S. 324, and
authorities cited. If originally the claimant lawfully purchased,
in perpetuity, the office of solicitor (
procurador) and
held it when Porto Rico was acquired by the United States, he
acquired and held it subject, necessarily, to the power of the
United States to abolish it whenever it conceived that the public
interest demanded that to be done. The intention of Congress in
relation to the office of solicitor or
procurador by the
Foraker Act cannot be doubted -- indeed, its abolition by Congress
is made the ground of the present action and claim. Upon the
acquisition of Porto Rico, that island was placed under military
government, subject, until Congress acted in the premises, to the
authority of the President as Commander in Chief acting under the
Constitution and laws of the United States. Porto Rico was made a
department by order of the President on the 18th of October, 1898.
By his sanction, it must be presumed, General Order No. 134 was
made, abolishing the office of solicitor or
procurador.
That order was recognized by Congress, if such recognition was
essential to its validity, when Congress, by the Foraker Act of
1900, provided that the laws and ordinances of Porto Rico, then in
force, should continue in full force and effect, except "as altered
or modified by military orders in force" when that act was passed.
It is clear that claimant is not entitled to be compensated for his
office by the United States because of its exercise of an authority
unquestionably possessed by it as the lawful sovereign of the
island and its inhabitants. The abolition of the office was not, we
think, in violation of any provision of the Constitution, nor did
it infringe any right of property which the claimant could assert
as against the United States.
See O'Reilly de Camara v.
Brooke, 209 U. S. 45,
209 U. S. 49.
The judgment of the Court of Claims must be affirmed.
It is so ordered.