3 of the resolution of May 1, 1900, supra, upon the grant of franchises by the Executive Council, obviously do not extend to the antecedent license granted by the Secretary of War.

I know of no other authority than your own to determine whether the license is a fair and reasonable exercise of the power conferred upon you. Certainly this proposition is true in the present situation of the case and the state of existing law. The revocable character of the grant constitutes a less extensive privilege than the definite term in the case cited. As your right to revoke is clear, I can not doubt that you can revise the terms of the license for the benefit of the United States or the Territory, if, in the changed condition of affairs, you now deem its conditions disadvantageous or unreasonable respecting either government.

Finally, I am scrupulous to point out that it is for you alone to determine whether the indications of the intent of Congress in the legislation reviewed are so clear as to lead you, by revoking the license, to surrender to such local control as may be legal, the jurisdiction over this wharf, upon such settlement with the licensee, on behalf of the United States or Porto Rico, as you may deem necessary or advis able. My opinion simply is, based on the decision in New Orleans v. Steamship Co., that so long as you do not determine that question, committed to your discretion, or until Congress may definitely pass upon the matter, the license granted by you is not void, nor, so to speak, functus officio. My ultimate answer to your question, therefore, is that, while section 10 of the river and harbor act of 1899 applies to the navigable waters of Porto Rico, the rebuilding of the wharf in question, so long as the license is unrevoked, is subject to your control and supervision, in accordance with the principles embodied in the license, or upon such modifications of its terms as you may choose to impose.

Very respectfully,

The SECRETARY OF WAR.

P. C. KNOX.

CULEBRA ISLANDS-ASSIGNMENT AS NAVAL BASE.

Under the treaty of peace with Spain (30 Stat., 1755), the Culebra Islands constitute a part of Porto Rico.

By the thirteenth section of the act of April 12, 1900, providing a civil government for Porto Rico (31 Stat., 77), Congress committed to local control, subject to the express limitation upon the local legislative power, the administration of certain public property and utilities, including "harbor shores, docks, slips, and reclaimed lands," but excluding "harbor areas or navigable waters."

Since the General Government made no reservation, express or implied, of any zone or strip of harbor shore not intended to be surrendered to the local government by that act, the United States should obtain, in accordance with the usual methods of authorization by Congress, a transfer of such individual property rights as may be involved, and a retrocession pro tanto from the government of Porto Rico of such part of the Culebra Islands as may be needed for a naval station. The Navy Department would not be warranted in requesting the President to make assignment to it of the Culebra group of islands for a naval base, so far, at least, as that portion of the plan is concerned which involves harbor shores, or any other branch of the rights and property committed by section 13 of the act of April 12, 1900, to the administration of the government of Porto Rico.

DEPARTMENT OF JUSTICE,

October 25, 1901.

SIR: I have the honor to reply herewith to your letter of October 15, in which you inform me that the general board of the Navy Department has recommended that the President be requested to assign by Executive order the Culebra group of islands east of Porto Rico, for the use of the Navy as an advanced naval base; and thereupon you request my opinion on the question whether in view of the provisions of the Porto Rican act of April 12, 1900 (31 Stat., 77), and of the establishment in Porto Rico of the government authorized by said act, the Navy Department will be warranted in requesting the President to make assignment to it of said group of islands for the purpose mentioned. The general board state that these islands have "an excellent harbor, capable of quick and easy defense, with an anchorage near by of sufficient size to enable all the vessels of our fleet to coal and receive other supplies.'

There can be no doubt that the sovereignty over and com

plete rights of property on the side of public domain in the Culebra Islands, passed to the United States under the treaty with Spain, subject to the private property rights of municipalities, corporate bodies, or individuals. (Arts. II and VIII; 30 Stat., 1755, 1758.) It is equally certain that the Culebra Islands are included in the law cited, as part of Porto Rico, because the first section of that law provides "that the provisions of this act shall apply to the Island of Porto Rico, and to the adjacent islands and waters of the islands lying east of the seventy-fourth meridian of longitude west of Greenwich, which were ceded to the United States by the Government of Spain by treaty entered into on the tenth day of December, eighteen hundred and ninety-eight; and the name Porto Rico as used in this act shall be held to include not only the Island of that name, but all the adjacent islands as aforesaid."

It is to be noted that on March 29, 1899-that is to say, more than a year before the passage of the Porto Rican act-the President by proclamation reserved for naval purposes certain lands on the island of Porto Rico proper, lying to the eastward of the city of San Juan (31 Stat., 1947). The act itself in section 12 imposes upon the government of Porto Rico the expenses incurred in the conduct thereof, and all expenses and obligations contracted for the internal improvement or development of the island, "not, however, including defenses, barracks, harbors, light-houses, buoys, and other works undertaken by the United States." The thirteenth section of the act provides

"That all property which may have been acquired in Porto Rico by the United States under the cession of Spain in said treaty of peace in any public bridges, road houses, water powers, highways, unnavigable streams, and the beds thereof, subterranean waters, mines, or minerals under the surface of private lands, and all property which at the time of the cession belonged, under the laws of Spain then in force, to the various harbor-works boards of Porto Rico, and all the harbor shores, docks, slips, and reclaimed lands, but not including harbor areas or navigable waters, is hereby placed under the control of the government established by this act to be administered for the benefit of the people of

Porto Rico; and the legislative assembly hereby created shall have authority, subject to the limitations imposed upon all its acts, to legislate with respect to all such matters as it may deem advisable."

And the thirty-first section, with its proviso, reserves to Congress the opportunity and authority to annul laws enacted by the legislative assembly of Porto Rico.

So it seems that Congress committed to local control, subject to the expressed limitation upon the local legislative power, the administration of certain public property and utilities, including "harbor shores, docks, slips, and reclaimed lands," but excluding "harbor areas or navigable waters."

I have had occasion to point out, in an opinion addressed to the Secretary of War bearing date October 17, the uncertain delimitation indicated by this language between the local and Federal control, and to state, in effect, that the national jurisdiction over "harbor areas and navigable waters" is properly to be exercised in accordance with the provisions of the river and harbor act of March 3, 1899 (30 Stat., 1121), with especial reference to section 10 thereof (id., 1151).

The obvious implication of sections 12 and 13 of the Porto Rican act is that the General Government retains title to, possession of, and control over certain other public property, of which fortifications and their appurtenances are specified, and also reserves for its own administration the usual national powers over lights, buoys, and other matters affecting navigation or "works undertaken by the United States."

From all this it is certain that the ordinary national control of the marine belt affects the coastal waters of Porto Rico as well as those of any State or any other Territory of the United States. But I am unable to escape from the conclusion that when harbor margins are involved, the Government of the United States, by reason of these grants of Congress to the government of Porto Rico, is now in the same position with reference to the island government, as well as to private owners, as it would be in a similar case

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affecting a State of the United States. In such case the Constitution indicates the proper course to be taken, to which the practice of the Government has conformed, by providing that Congress may "exercise exclusive legislation over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings" (Art. I, sec. 8, cl. 17). It is not needful in this case to withhold the analogy because the word "State" alone is used in this provision, for Congress appears clearly to have placed the Territory of Porto Rico on the same plane as a State, in this respect at least, by its surrender of a large share of public property and functions to the local control.

It is true that Mr. Cushing, in an opinion respecting military reservations in Oregon (6 Opin., 157), says:

In general, the decision as to the quantity of land to be reserved for public use, and the places where to be located, rests in the discretion of the President, subject to such regulations as Congress may from time to time make, either as to the particular public use, or the quantity capable of reservation therefor, or as to the disposal, for private use, of the whole or any part of that which may have been set apart for public use."

But that statement was made with reference to the particular condition of Oregon and special legislation bearing thereon, from which it appeared that in the organic act for the government of that Territory, it was provided that “no law shall be passed interfering with the primary disposal of the soil;" and that "all laws heretofore passed in said Territory making grants of land or otherwise affecting or encumbering the titles to lands shall be and are hereby declared to be null and void." The legislation of Congress further provided "that such portions of the public lands as may be designated under the authority of the President of the United States for forts, magazines, arsenals, dockyards, and other needful public uses shall be reserved and excepted from the operation of this act" (see. 14, act of September 27, 1850, 9 Stat., 496; act of February 14, 1853, 10 Stat., 158).