bestowal of special franchises, such as the construction of roads, the keeping of ferries, and the erection of bridges with the right to collect toll upon them. These are grants by the authority of the state as particular privileges which look to the promotion and protection of the public good. But the municipal laws promulgated during the time the ceding authority existed and which are generally recognized as necessary to the peace and good order of the community remained in full force and effect. Any other rule would hold in abeyance civil functions with respect to the use, enjoyment, and transfer of private property that would lead to results harmful to the inhabitants of the ceded territory and injurious to the best interests and authority of the new sovereign as well. This is something that has not been tolerated in modern times.

The court finally held that the existence of a state of insurrection at the place of incorporation would not affect the validity of judicial acts (which would include the incorporation of this association under the municipal law), which were not hostile in their purpose or method of enforcement to the authority of the national government.

Judgment was therefore given for the plaintiff

WARNER, BARNES AND CO. (LTD) V. THE UNITED STATES. 1904

40 Court of Claims Reports, 1

The facts of this case were as follows:

The plaintiff, an English corporation engaged as a general commission mercantile trading house in the port of Manila and other ports in the Philippine Islands, imported, as a part of its business, certain goods from the United States, after the ratification of the treaty between Spain and the United States but before the end of the Filipino insurrection, upon which goods the military authorities of the United States in control of the islands levied tariff duties as military contribution, not under the authority of the general laws of the United States, but under authority of the orders of the president, the proceeds of which duties were used in suppressing the insurrection.

The plaintiff now sues for the recovery of these duties on the ground. that when the treaty with Spain was ratified, the war in the Philippines ceased and the government passed into the hands of the civil authorities of the United States, thus making illegal the war contributions exacted by the military authorities.

After reviewing the operations of the United States forces in the Philippines and the resistance offered by the insurgents, the court decided that notwithstanding the ratification of the treaty of peace with Spain, a state of war did exist in the Philippines until the United States had suppressed armed resistance to its authority. The court said:

That such war did exist before and after the exchange of ratifications of the treaty with an armed military power in said islands is beyond dispute, and whether such war was declared or recognized in a particular manner or not, it seems to us, is but to beg the question.

The court then proceeded to hold that the question of war is one to be determined by the political department of the government, and that the president and congress did once and again recognize a condition of war in the archipelago.

Continuing, the court said:

The vital point is that until the military forces of the United States had suppressed armed resistance against its authority and established its sovereignty in the islands, the government could not give the effect to the treaty contemplated by the high contracting parties.

In holding that the levying of the duties in question were, therefore, legal, the court said:

In time of war, within the military district of its operation, no restrictions are placed upon the power and authority of the military commander except such as are imposed by the common consent of all civilized people. His power is absolute within the radius of his jurisdiction. He may prohibit or restrict all trade or commerce within his lines. As a condition to commerce within his military district he may impose contribution to assist in the expenses of the war or in giving such care to indigent non-combatants as humanity may require. These principles are, it seems to us, elementary and have their existence in long-established and universal usage. They pervade the pages of history. Authorities are unnecessary to prove their existence, but recognition has been given them in Matthews v. McStea (91 U. S., 9); Prize Cases (2 Black., 635); Hamilton v. Dillin (21 Wall., 73).

GALBAN AND COMPANY, A CORPORATION, V. THE UNITED STATES. 1905

40 Court of Claims Reports, 495

This is a case where an American corporation doing business in Cuba during the military occupation of the United States imported merchandise from the United States after the treaty of peace between the United States and Spain, upon which it was required to pay duties by the military government. The duties were imposed under the authority of the president as commander-in-chief of the army. The money was expended for the necessary governmental purposes incident to the occupation of Cuba. The claimant brought this suit to recover back the money so paid.

The claimant's contention is based upon the ground that by Article I of the treaty with Spain the sovereignty of the people of the island of Cuba and the title to the island passed to the United States, and, there

fore, the imposition of customs duties upon merchandise imported into the island from the United States without express authority from congress was unlawful and illegal.

By Article I of the treaty it was provided:

Spain relinquishes all claim of sovereignty over and title to Cuba.

And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property.

By Article XVI of the treaty, the obligations assumed by the United States in respect to Cuba were limited "to the time of its occupation. thereof."

The court held that the theory of the claimant that sovereignty over and title to Cuba vested in the United States upon the relinquishment thereof by Spain is negatived by the language of the treaty in the above articles, and also by the express disclaimer of the congress of the United States in the fourth section of the joint resolution which it passed and was approved April 20, 1898, which reads as follows:

Fourth. That the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the island to its people.

This holding of the court that Cuba was, during the occupation thereof by the military forces of the United States, foreign territory, would have been sufficient ground for rejecting the claimant's petition without further argument, but the court proceeded to justify the collection of the duties as follows:

The occupancy of Cuba by troops of the United States was a necessary result of the war imposed upon the United States by the principles of international law, and during such occupancy the president had the undoubted right to prescribe rules and regulations having the force of law for the peaceable government of the island. The powers and functions which were exercised by the United States were those of a trustee for the protection and security of persons and property, having in view the restoration of confidence, and the encouragement of the people to resume the pursuits of peace. In furtherance of that trust it became necessary to levy the duties, part of which were paid by the claimant. It would have been an act of bad faith and a breach of trust had the merchandise of a citizen of the United States imported into Cuba from the United States been exempted from the payment of such duties, because the people of Cuba were entitled not only to have the revenues honestly

collected but were entitled to have all the revenues accruing to the island, from whatever sources, applied to the pacific object of the occupation. The petition was accordingly dismissed.

CHARLES F. WYMAN, PETITIONER; JOHN W. M'EVOY, PUBLIC ADMINISTRATOR, V. CHARLES F. WYMAN. 1906

191 Mass. 276

Executor and Administrator-Constitutional Law-Treaty-Russia. Under the existing treaties, which are the supreme law of the land, the petition of the consular representative of the empire of Russia for this commonwealth, to be appointed administrator of the estate of a Russian subject who died here, must be granted against the objection of the public administrator.

Two appeals, from decrees of the probate court for the county of Middlesex.

Julius Saposnick, alias Sapoznik, alias Sapognick, died intestate in Cambridge in the county of Middlesex, on July 9, 1902, leaving personal property to be administered upon in that county. He was a citizen and subject of the empire of Russia and left in the United States no widow, heirs at law or next of kin; but left in Vilna, Russia, a widow and three minor children.

Charles F. Wyman of Cambridge is vice-consul of the empire of Russia at Boston, Massachusetts, and the consular representative of that empire for the commonwealth of Massachusetts. On May 12, 1903, as such vice-consul he filed a petition to be appointed administrator of the estate of Julius Saponznick, above named, claiming the right to administer the estate under the treaty between the United States and the empire of Russia.

On May 27, 1903, John W. McEvoy, public administrator for the county of Middlesex, filed a petition to be appointed administrator of the estate of the same man.

In the probate court, McIntire, J., dismissed the petition of the Russian vice-consul, stating in his decree,

it not appearing that he has a legal right to be appointed administrator of the said estate to the exclusion of a public administrator.

On the same day he allowed the petition of the public administrator, and decreed that letters of administration on the estate should be granted to him.

Charles F. Wyman, the Russian vice-consul, appealed from both decrees.

The cases came on to be heard before Knowlton, C. J., who by agreement of the parties reserved them upon the pleadings and an agreed statement of facts for determination by the full court, such entries to be made as law and justice might require.

F. R. Coudert (of New York) (J. H. Appleton with him), for the petitioner.

F. T. Field, assistant attorney-general, for the public administrator. Lathrop, J. On the agreed facts in this case we have no doubt that the judge of the probate court erred in appointing a public administrator as administrator of the estate of a Russian subject dying here intestate and leaving personal property, and in dismissing the petition of the Russian vice-consul on the ground that it did not appear that he had a legal right to be appointed administrator of the estate to the exclusion of the public administrator.

By article 8 of the treaty of 1832, between Russia and the United States, it is provided:

The two contracting parties shall have the liberty of having in their respective ports consuls, vice-consuls, agents, and commissaries, of their own appointment, who shall enjoy the same privileges and powers as those of the most favored nations.

The same treaty in article 10 provides:

The citizens and subjects of each of the high contracting parties shall have power to dispose of their personal goods within the jurisdiction of the other, by testament, donation, or otherwise, and their representatives, being citizens or subjects of the other party, shall succeed to their said personal goods, whether by testament or ab intestato, and may take possession thereof, either by themselves, or by others acting for them, and dispose of the same at will, paying to the profit of the respective governments such dues only as the inhabitants of the country wherein the said goods are shall be subject to pay in like cases.

Under the most favored nation clause, reliance is had upon the provisions of article 9 of the treaty of 1853 between the Argentine Republic and the United States, which read as follows:

If any citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the consul-general or consul of the nation to which the deceased belonged, or the representative of such consul-general or consul, in his absence, shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs.

See also the treaty between Costa Rica and the United States of 1851, article 8.

There is but little authority directly in point, on the question raised by this appeal. In Lanfear v. Ritchie, 9 La. Ann. 96, decided in 1854,