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4th ed., p. 98) in speaking of the navigation and regulation of a river. In such a case the obligation runs with the land, and may be regarded as other than a mere personal obligation. But this is no reason for treating personal obligations, stipulated in an executory contract, as not personal obligations, simply because they may have some relation to a particular ceded locality.
I am unable to regard these contracts of concession, with their manifold personal stipulations, as other than what they purport to be; and the difference between them and servitudes, diminishing the title of the owner prior to the cession or appurtenant to the province ceded, or contracts to convey public lands, or what we conceive of as a “franchise” to accomplish (as here) a public duty of the sovereign of the ceded province, or even a private (e. g., eleemosynary) work, where such franchise exists otherwise than as but an integral part of such an executory contract of the sovereign of the province as we have under consideration, seems to me to be an obvious one. These contracts are contracts. They are whole things with interdependent parts and reciprocal personal promises. We can not change their nature by calling them by other names, or repeating the word “local” in connection with them. As such personal contracts their promises bind those who made them. Any obligation of others in connection with their subject-matter is something different from the contract obligation, and may or may not coincide with the terms of the specific promises.
When we look into the present instance we find the large capital upon which the subsidy was calculated has long since been invested by the railway company; the provinces of the Philippines have undoubtedly received, and they retain and will retain, the chief benefit from the railroad; the revenues out of which that part of the benefit was to be paid for are now in the hands of their new government; the creditor was induced, very properly, to look to those revenues for that purpose; and, moreover, the railroad was a most necessary piece of property, two-thirds of which was bought, as it were, by a guardian for the use of his ward, the price to be paid as to two-thirds from the funds of the ward.
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The property has been furnished and is being maintained, and, from its nature, will be maintained, and must continue to benefit the ward, whose funds are now freed from the guardian's control. From these considerations it seems to me to follow that, although the contract as such has departed with Spain, there is a general equitable obligation upon the provinces to make some fair arrangement with the company as to the two-thirds benefit, and that they can not justly take advantage of the disappearance of Spain to retain what she procured for them, on the credit of their funds, and deny all liability for the price.
Whether, based exclusively upon the reception (for the future and so far as geographical, political, and other differences will permit a benefit to continue) of the benefit of the railroad, the United States has incurred any liability affecting one-third or any such portion of the original indebtedness, it is unnecessary to consider, since, if so, it will be for Congress to deal with it.
So much in answer to your question as to what obligations, if any, exist under said concession, either against the revenues of the Philippine Islands or those of the United States.
You ask, if any such obligations do exist, what action can legally be taken in recognition and settlement thereof, by the Executive department of the United States, or by the military government of those islands.
It seems to me that the non-action of Congress has confirmed to the President the responsibility and authority to continue the military government he has set up in the Philippines, as the only government, for the present and for an uncertain time, of a peopled country whose future permanent status is undetermined. (Treaty of Paris, Article IX: opinion Attorney-General, July 22, 1898 (22 Opin., 150). concerning Hawaii). Under such circumstances I am of opinion that the President is not without authority to settle a preexisting accrued indebtedness of the kind herein explained, if he has good reason to believe that the settlement can not wisely and justly be left to await action by the future government.
It is represented in the papers submitted to me that the large deticiencies in the receipts of the railroad company, occasioned by the disturbed state of affairs, etc., threatens its bankruptcy. If so, this is a fact which may be considered in determining the propriety of present action.
You desire to know what particular action can be taken. I am of opinion that the President has authority, if he thinks it necessary, to apply the local revenues of the prorinces through which this road extends to the discharge of their equitable liability, based upon so much of the concessionary agreement as has been already executed, the amount of which liability he has authority to determine, in view of all the facts and circumstances. And what he can do the military government can do with his consent. Respectfully,
JOHN W. GRIGGS. The SECRETARY OF WAR.
SPANISH CONCESSIONS FOR TELEGRAPHS - CUBA - THE
The concessions secured from Spain by English telegraph companies in
Cuba and the Philippines are not binding, as contracts, on the United States, Cuba, the Philippines, or other government replacing Spain; but, as to the Philippine cables, it does not follow from this fact that DEPARTMENT OF JUSTICE,
no obligation whatever exists. There is an equitable obligation on the part of the four islands connected
by cables, and on the part of the archipelago as a whole, with regari to the concession for interisland cables in the Philippines, which con
cession provides for an annual subsidy. With regard to two other concessions for cables, from Bolinao to Manila
and from Bolinao to Hongkong, which do not call for pecuniary subsidies, but for a monopoly during a certain number of years, the equitable obligation upon the islands concerned, and upon the archi
pelago, though less obvious, exists. It is for Congress to determine whether any such obligation exists on
the part of the United States. In the absence of any urgent reason for Executive action, the whole
matter of these equitable liabilities concerning the Philippine cables, ought to be left to Congress or to the permanent Philippine govern
ment. The foreign and purely temporary character of the occupation of Cuba
by the United States makes it highly proper for the latter to leave the question of Cuba's equitable liability in regard to similar concessions to the permanent government of Cuba to determine.
July 27, 1900. Sir: I received from you some months ago the following request for an opinion, a response to which I took the liberty of delaying, in expectation of possible changes in the situation of affairs in Cuba and the Philippines. As I am verbally informed that the British ambassador is very desirous of information from you upon the subject-matter, I shall now proceed to answer.
“Sir: I have the honor to acknowledge the receipt of your letter of the 6th ultimo, and to inform you in reply that this Department's letter of November 13 last, to which you refer, inadvertently submitted to you the question whether the claim of the Cuba Submarine Telegraph Company for reimbursement of the expenses actually incurred by it in the repair of its cables, cut by the United States forces, should be sent to Congress.
“It was the Department's purpose in the said letter to confine its reference to only the first paragraphs of Lord Pauncefote's note of May 25, 1899, therewith inclosed—that is, to the question of the recognition by the United States of the concessions secured from Spain by English telegraph companies in Cuba and Porto Rico. “I have the the honor to be, sir,
"Secretary of State. The ATTORNEY-GENERAL."
“Porto Rico" is an evident mistake, as the ambassador's notes concern Cuba and the Philippines.
I have just completed an opinion to the Secretary of War as to the following questions:
“I have the honor to inclose herewith papers relating to the claim of the Manila Railway Company, Limited, for quarterly subventions under the concession granted it by Spain, and to request your opinion as to what obligations, if any, exist under said concession either against the revenues of the Philippine Islands or those of the United States; and if any such obligations do exist, as to what action can
legally be taken in recognition and settlement thereof by the Executive department of the United States, or the military government in those islands."
The concession of the railroad company is similar to that of the cable companies, and I therefore refer to the opinion of the Secretary of War as throwing light upon your inquiries. In accordance with the views, and for the reasons therein explained, I am of opinion that the contracts of concession of the Cuba Submarine Telegraph Company, concerning cables from Habana to Santiago and from Habana to Manzanillo; also the three concessions to the Eastern Extension, Australasia and China Telegraph Company, Limited, concerning cables from Hongkong to Bolinao and from Bolinao to Manila, and three cables from Luzon to Panay, Negros, and Cebu Islands, are not binding, as contracts, on the United States, Cuba, the Philippines, or other government replacing Spain.
As to the Philippine cables, I am of opinion, for reasons partly suggested in my communication to the Secretary of War, that it does not follow from the fact that there is no contract obligation that there is no obligation at all.
The concession for interisland cables in the Philippines provided for an annual subsidy of £4,500, payable from the general treasury of the Philippines, and the reasons given in the case of the railroad company lead to the conclusion that there is an equitable obligation on the part of the four islands connected by the cables and on the part of the archipelago as a whole.
The other concessions, for cables across from Bolinao to Manila and from Bolinao to Hongkong, do not call for pecuniary subsidies, but for a monopoly during so many years. The equitable obligation upon the islands concerned and the archipelago is less obvious, but I think, nerertheless, that it exists. The monopoly, if not money, was a valuable thing and quite as local as the revenues of the Philippines. The benetits were received as in the other case, although, of course, the cable to Hongkong gives a foreign as well as a local benefit.
I have not deemed it necessary to inquire into any equitable obligation on the part of the United States growing