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Mr. S. Mallet-Prevost for appellant.
[216 U.S. 167, 170] Assistant Attorney General Thompson and Mr. Franklin W. Collins for appellee.
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 [216 U.S. 167, 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 10th day of December, 1898, [30 Stat. at L. 1754], 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 [216 U.S. 167, 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. 2. '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: '11. The office of solicitor ('procurador') is abolished. Those who have heretofore practised 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. 12. 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. 13. 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 dities. [216 U.S. 167, 174] On the 12th 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. at L. 77, 79, chap. 191.
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 8th section of the act of Congress of April 12th, 1900, was to confiscate, funally 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 [216 U.S. 167, 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 [216 U.S. 167, 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. J. Ribas y Hijo v. United States, 194 U.S. 315, 324 , 48 S. L. ed. 994, 996, 24 Sup. Ct. Rep. 727, 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, 49 , 52 S. L. ed. 676, 677, 28 Sup. Ct. Rep. 439. The judgment of the Court of Claims must be affirmed.
It is so ordered.
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