become a citizen of the United States until he had elected to do so under the provisions of the treaty of Guadalupe-Hidalgo.

Numerous reasons were advanced by the claimants to support their contention, and the court answered them seriatim, as follows:

The first reason assigned was that the constitution of Texas made all inhabitants citizens of the republic, and that the act of the Texas legislature of December 19, 1836, fixed the western boundary of the state at the Rio Grande. But the court said:

It is manifest that the state could not acquire territory by statute, and that it had no more legal right to declare a part of the Mexican province of New Mexico a part of Texas than it had a right to make a part of the state of Louisiana a part of Texas.

The next reason assigned was that by the treaty between the United States and Texas in 1836, the United States recognized the territory of Texas as extending westward to the sources of the Rio Grande. To which the court replied:

But Texas was then at war with Mexico, endeavoring to acquire a part of the territory within the Mexican province of New Mexico. The United States did not undertake to arbitrate between Mexico and Texas. All that the treaty did was to establish a boundary line between the territory possessed by Texas and the territory possessed by the United States, and to concede that if Texas should conquer this portion of Mexico the river should be the future boundary between Texas and the United States.

The next reason assigned was that the United States recognized the territory claimed by Texas, and that the courts of the United States must follow the action of the political branches of the government. The court answered:

But the joint resolution for annexing Texas, March 1, 1845 (5 Stat. L., 797), does not sustain the reason. On the contrary, congress seems to have carefully avoided doing so, and to have recognized the principle that Texas could not cede what it did not possess. All that the resolution says is "the territory properly included within and rightfully belonging to the Republic of Texas may be erected into a new state to be called the state of Texas." The question now presented to the court is whether this portion of New Mexico was, in 1845, "territory properly included within and rightfully belonging to the Republic of Texas." The joint resolution admitting the state to the Union, twenty-ninth December, 1845 (9 Stat. L., 108), reiterates the above language and designates no boundary. The act to extend the laws of the United States over the state of Texas, twenth-ninth December, 1845 (ib., p. 1), is equally silent as to boundaries.

The next reason assigned was that the United States asserted, after the annexation, that the Rio Grande, and not the Neuces, was the boundary of Texas, and declared war to maintain that right. But the court said:

The intent of the United States did not necessarily extend beyond that portion of Texas which was then actually inhabited and possessed by Americans between the Neuces and the Rio Grande and which had been "properly included within and rightfully belonging to the Republic of Texas," and, by virtue of those terms, ceded to the United States.

The next reason assigned was that by the act of March 3, 1847 (9 Stat. L., 188, 194), a post route was established by congress from a point within the United States (Independence, Mo.) to the town of Santa Fé, in New Mexico, to which the court answered:

But New Mexico was then held by conquest, and had been for six months, and civil government had been established by the commanding officer of the United States, General Kearny, with the approval of the secretary of war. It was necessary that the United States should have mail communication within the territory, which it then possessed by right of conquest, and this conquest was subsequently made permanent, by the treaty of Guadalupe-Hidalgo.

Moreover, the establishment of such a post route means nothing as a declaration that Santa Fé was in Texas, for the act third March, 1851 (9 Stat. L., 637, 2), confers upon the postmaster-general power "to make suitable arrangements for transporting through any foreign country the mails of the United States, running from and to any point in the United States." In other words, it authorizes a post route through a foreign country.

The final reason assigned was that the United States by the act of May 9, 1850 (9 Stat. L., 446), paid to Texas $10,000,000 in consideration of the cession of all territory claimed by the state. But the court answered this contention in the following language:

At that time the United States had acquired title to all of New Mexico by virtue of its right of conquest and the affirmance thereof by the treaty with Mexico. The United States and Texas were, therefore, asserting adverse titles against each other. The fact that the United States paid money to quiet title and to acquire a quit claim from the state of Texas of lands to which Texas asserted a title can not possibly affect, directly or indirectly, the prior citizenship of a person living within the disputed territory. The statue concedes nothing and declares nothing which the judicial branch of the government can recognize as in any way affecting the question now in controversy.

The defendants' motion for a new trial was allowed and a new trial granted.

CHAUNCEY THOMAS V. THE UNITED STATES. 1903

39 Court of Claims Reports, 1

This was a case which involved the question as to whether or not war existed in the Philippines after the ratification of the treaty with Spain but before the suppression of the Filipino insurrection.

The question was raised under the following state of facts:

An American naval officer was assigned, from July 11, 1899, until August 15, 1899, to duties of a higher character than those ordinarily imposed on an officer of his rank, and brought this suit to recover the difference in pay for the period in question. The provisions of the statute, under which he sued, authorizing such pay, were only applicable for services rendered "in time of war." The war with Spain ceased with the ratification of the treaty on April 11, 1899, before the rendition of the services claimed for, but the insurrection had not ended.

Numerous rulings of the war department were cited holding that a state of war did exist in the Philippines after the ratification of the treaty with Spain and during the insurrection.

The court held that

"while the question is not free from doubt because of the absence of a war technically, or in an international sense," still "the insurrection which resulted in a condition of war in the Philippine Islands was such as to bring the claimant's services within the terms of the statute as having been rendered 'in time of war.'

THE PHILIPPINE SUGAR ESTATES DEVELOPMENT COMPANY (LIMITED)

V. THE UNITED STATES.

1904

39 Court of Claims Reports, 225

This was an action for the recovery of rent for the use and occupation of certain buildings and a tramway in the Philippine Islands. The property was owned by the order of Dominican friars, who made a contract for its sale to one Richard Henry Andrews, a British subject, now deceased. Andrews acquired title August 8, 1898, and transferred his interest to the plaintiff company, which was incorporated in January, 1900. The authorities of the United States came into the possession of the premises after the insurgents (who had previously taken forcible possession), and occupied and used the parcels set forth in the findings. No compensation or rental was paid for the use, but at no time has any claim of title or equity been asserted by the United States. Claims for rent of the property were recognized as just, but doubts as to the true ownership having been suggested by various military and civil officers of the government, compensation had been withheld until the doubt as to the title could be determined.

Under these circumstances there was no express contract for the government to pay, but the court held that a promise would be implied to pay a reasonable rent to the true owner.

The defendants first set up a want of jurisdiction, claiming that the right to bring an action given by $1068 of the Revised Statutes of the United States, did not include individuals in the colonies of those nations, although the citizens or subjects of the same nations domiciled at home had the right to sue. The statute referred to reads as follows:

Aliens, who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prosecuting claims against the United States in the court of claims, whereof such court, by reason of their subject-matter and character, might take jurisdiction.

The court, however, said:

We are unable to see any reason why an alien, whether citizen of France or subject of Spain, possessing the right to prosecute claims in this court under the statute cited should be denied the right to sue if residing in the colonies of such governments.

And further, that

the statute makes no distinction between natural and artificial persons.

But the court denied that the plaintiff company was a foreign association, and held that the

national character of a corporation arises from the jurisdiction in which and in accordance with the laws of which it is organized.

The plaintiff company was organized according to the local laws of the Philippines and domiciled at the place of incorporation; all the requirements of the local laws in such cases made and provided were met, and the company was, therefore, domestic. Moreover, the recitals in the articles of incorporation as to the presence of foreigners would not operate to make the company foreign, for it would be legally presumed that the company was composed of citizens of the state which created it. Said the court:

In the controversy between the present parties the fact that the articles of association show the presence of foreigners is not sufficient to change a domestic company into a foreign body politic, and the national character of the company which brings this action must be determined from the local jurisdiction which gave it being, irrespective of the individual incorporators.

Another point made by the defendants was that the company, legaily considered, had no power to acquire or manage real property in the Islands, and an opinion of the attorney-general of the Philippines was cited in support of the argument. For the purpose of answering this point, the court assumed that the presence of foreigners among the individual incorporators made the company foreign in character.

On

this assumption, the court held that power to acquire, hold, and dispose of real property was a civil right secured to foreign persons, both natural, and "judicial," by the laws of Spain. But it was argued that the Maura decree, promulgated February 13, 1894, forbade plaintiff, if a foreign corporation, to hold property; to which the court replied:

The Maura decree was an administrative law for the benefit of the state. It ought not to be held to abrogate a civil right by implication because civil rights are not regulated by administrative laws. The decree was not meant to regulate civil rights, but pertained solely to the acquisition, classification, and tenure of state lands. As the civil code conferred upon foreigners equality of civil rights with natives, and specifically conferred upon foreign corporations domiciled in Spain the nationality of Spain, we do not think that a law relating to lands of the crown superseded or was intended to supersede rights conferred by the civil code.

It was then contended by the defendants that the local authorities were not competent to create the plaintiff a corporation. The treaty with Spain ceding the Philippines was ratified in April, 1899, and the company was organized in January, 1900, under the Spanish laws claimed to be in force in the Philippines after the treaty of Paris. The ground of the defendants' contention was that at the time of the cession of the archipelago, only such laws were continued in force as did not. involve a sovereign grant-the right to any kind of a charter under local regulations being included. On this point the court, after citing the general rule of international law in regard to all conquered or ceded territory, that the old laws continue until repealed by the proper authorities, quoted the following passage from the decision of Chief Justice Marshall in American Insurance Company v. Canter (1 Peters, 511):

On such transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved and new relations are created between them and the government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the state.

A distinction was then drawn between special privileges granted by the ceding sovereignty to a particular person or body and those granted under general municipal laws. The court said:

Special privileges, grants, or franchises flowing from the grace and pleasure of the sovereign in favor of some one particular person or body distinguished from the general body of the inhabitants are the things forbidden. It needs no reference to international law to say that any exercise of authority by the ceding sovereignty, after cession, could not have force with reference to such things as grants of land, or the