opinion, payment of the sum named should not be made, and in this report and in your letter reference is made to the suit of the Harvey Steel Company against the United States, No. 21111, filed in the Court of Claims, December 3, 1898, to recover the sum of $61,600, as royalty for the use of the Harvey process in the manufacture of certain armor plate for naval vessels, and attention is directed to the report and papers filed therein. In view of the questions involved in the suit mentioned, you state that your Department is in doubt as to whether it can, with due regard for the Government's interest, make payment of the royalty to the Carnegie Steel Company as requested, and you therefore ask my opinion as to the right of the Navy Department, under all the circumstances, to withhold its 'approval of the voucher providing for such payment until the determination by the courts of the Harvey Steel Company's suit. I beg to say, that I have carefully examined the proceedings and the papers to which you refer and that I am clear in the opinion that the Navy Department has a right, under all the circumstances, to withhold its approval of the voucher providing for the payment to the Carnegie Steel Company of the sum mentioned, as royalty for the use of the Harvey process in the manufacture of armor plate for naval vessels, until the legal question of the right of the Harvey Steel Company to collect royalty from the Government, involved in the pending suit, shall be finally adjudicated. The Navy Department has taken the position that the Harvey Steel Company has no right, under its patents, to demand and collect from the Government a royalty for the use of the face-hardening process employed in the manufacture of armor plate. Whether the Navy Department is right in this or not, can only be properly determined by the courts. A change in the method of collecting the royalty can not satisfactorily settle the right to it. The Navy Department may rightfully insist that neither directly nor indirectly shall any royalty be paid until the right to the royalty be judicially determined. Respectfully, The SECRETARY OF THE NAVY. JOHN W. GRIGGS. COURTS-MARTIAL-WITNESSES-FEES. The act of March 2, 1901 (31 Stat., 950), which provides that a person who, being duly subpoenaed to appear as a witness before a general court-martial of the Army, willfully neglects or refuses to appear, or refuses to qualify as a witness, or to testify or produce documentary evidence which he may have been legally subpoenaed to produce, shall be deemed guilty of a misdemeanor, requires that the legal fees of such witness shall be first duly paid or tendered in order to lay the foundation for a prosecution under that act. A mere statement in the subpoena, signed by the judge-advocate of the court-martial, to the effect that the United States tenders or guarantees the payment of the authorized fees, is not a sufficient compliance with that act to support a prosecution thereunder. DEPARTMENT OF JUSTICE, March 16, 1901. SIR: By an act of Congress approved March 2, 1901, it is provided: "That every person not belonging to the Army of the United States who, being duly subpoenaed to appear as a witness before a general court-martial of the Army, willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or produce documentary evidence which such person may have been legally subpoenaed to produce, shall be deemed guilty of a misdemeanor, for which such person shall be punished on information in the district court of the United States: * Provided, That this shall not apply to persons residing beyond the State, Territory, or District in which such general court-martial is held, and that the fees of such witness, and his mileage at the rates provided for witnesses in the United States district court for said State, Territory or District shall be duly paid or tendered said witness." * * After calling my attention to this measure, you request my opinion as to whether it is necessary, in order successfully to prosecute a person subpoenaed under the provisions of this act, who refuses to obey the subpoena, that the fees of such witness shall have been actually paid or tendered to him at the time of the service of the subpoena; or whether a statement in the subpoena, signed by the judge-advocate of the court-martial, to the effect that the United States tenders and guarantees the payment of the authorized fees is a suf ficient compliance with said act to support a prosecution thereunder. I am clear in the opinion that the fees of the recalcitrant witness must have been actually paid or tendered to him at the time of the service of the subpœna, in order to lay the foundation for a prosecution under this act. The act so provides, and its provisions must be strictly followed. The guarantee of fees is neither the payment nor tender of such fees. Respectfully, The SECRETARY OF WAR. JOHN W. GRIGGS. SPANISH TELEGRAPHIC CONCESSIONS-INFRINGEMENT— CUBA. As a matter of power, it is within the legitimate function of the War Department to maintain a telegraph line between Santiago and Havana, Cuba, and to transmit private messages over it, although the transaction of business of that nature may be in conflict with the vested rights of the International Ocean Telegraph Company. In the maintenance and operation of such line, the military officers of DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge receipt of your communication of October 12, 1900, in which you request my opinion upon a state of facts arising as follows: "The International Ocean Telegraph Company maintains and operates a cable between the United States and Cuba. This company claims the exclusive right of telegraphic communication between the United States and Cuba, continuing until January, 1906, by virtue of a concession from the Spanish Government dated December 5, 1866, and May 13, 1867. "The United States and Haiti Telegraph and Cable Com pany maintains and operates a cable from New York City to Haiti. "The French Cable Company maintains and operates a cable from Haiti to Santiago, Cuba, under a concession granted by the Spanish Government. This cable was constructed and operated prior to the American occupation. "The Signal Service Corps, U. S. A., constructed an overland telegraph line between Santiago and Havana, which line is now being operated as a common carrier of telegraph messages. "By mutual agreement the lines of the United States and Haiti Telegraph and Cable Company and the French Cable Company are now operated as a continuous line, and transmit messages between New York and Santiago, Cuba, via Haiti. "On arrival in Santiago, Cuba, messages destined for Havana or elsewhere in Cuba are tendered to the persons in charge of the overland telegraph line operated by the United States military authorities, by whom they are accepted and transmitted upon payment of the rate charged the general public. "The acceptance and transmission of such messages by the overland telegraph line enables the cable companies operating the cable between the United States and Cuba, via Haiti, to compete with the International Ocean Telegraph Company for messages passing between the two countries. "The International Ocean Telegraph Company insists that said practice constitutes an infringement of the terms of the concession granted the French Cable Company and also a violation of the concessionary rights of the International Ocean Telegraph Company. "Application is now made by the International Ocean Telegraph Company to the Secretary of War, for an order sufficiently comprehensive to prevent said competition and alleged violation of right. The questions upon which I have the honor to request your opinion are as follows: "1. What action, if any, is incumbent upon the Secretary of War under the foregoing conditions? 2. If the premises present a condition requiring action by the War Department, in what form and to what extent shall the action be taken?" The claim of the International Ocean Telegraph Company to an exclusive right of telegraphic communication between the United States and Cuba has been under consideration in this Department on two former occasions. (See 22 Opinions, 408,514.) In the opinion rendered to the Secretary of War under date of June 15, 1899, referring to the Spanish concession to the International Ocean Telegraph Company, it was declared that that company produces a grant which, upon its face, gives them an exclusive right for a period which has not expired. No opinion was expressed by this Department as to the ultimate validity of the concession, but its validity was recognized prima facie sufficiently to entitle it to protest against action on the part of the War Department or of the President which would tend, by infringement of its granted vested rights, to injure its business. The present question relates to the action of the military authorities of the United States, who are now exercising governmental control over the Island of Cuba. As a mere matter of power, it is within the legitimate function of the War Department to maintain the telegraphic line between Santiago and Havana and transmit messages over it, even although the transaction of business of that nature by the War Department may be in conflict with the vested rights of the International Company. That would, however, be because, in the maintenance and operation of such line, the military officers of the United States in Cuba are exercising the war powers under a military occupation of territory wrested by arms from a belligerent. That is a very different thing, however, from deciding whether, as a pure question of legal right, the business of the International Company is thereby injuriously affected in contravention of its concession. Under the facts stated, it is not possible for me to say whether the maintenance of the line between Santiago and Havana by the United States authorities, and the carrying of private messages, is or is not necessary or convenient for the War Department in its conduct of the government of the Island, and I am therefore unable to advise you what action, if any, is incumbent upon the Secretary of War under the conditions stated. I observe, however, among the papers submitted to me, a report upon this subject by the Military Governor of Cuba in which he recommends that the transmission of private messages intended for the United States, |