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In view of this legislation, Mr. Cushing thus disposes of an objection to the power of the President found in an act of the legislature of Oregon which was approved by Congress:
“It is idle to suppose that the legislature of the Territory in passing that law, or that Congress in approving it, intended to divest the United States of the title and use of the fort and barracks at Fort Vancouver,
and if such an act of local legislation could by strong imagination be of itself construed into a grant of land, or as affecting or encumbering the title of the United States, then such act of the local legislature is ipso facto null and void by express provision of the act of Congress.”
The difference between the two cases may thus be stated : In the Oregon case the right of the United States to dispose of the public domain was plainly and necessarily reserved, and the title of the Government and the authority of the President respecting portions of the public lands for forts, etc., and other needful public uses were expressly reserved. In the case of Porto Rico there are no such clear reservations, and while among the statutory laws of the United States applicable to Porto Rico appear to be included the laws relating to public lands, so far as applicable-since it is not “otherwise provided” in the Porto Rican act (sec. 14, et passim)--and while among the things and matters committed to local control by section 13, public lunds as such are not included, nor the general littoral of the islands, vet it is clear beyond peradventure that “ harbor shores, docks, slips, and reclaimed lands" are explicitly entrusted or granted to the control and administration of the island gorernment. At the same time I think it is beyond question that section 1851, Revised Statutes, declaring that no law shall be passed by a Territorial legislature] interfering with the primary disposal of the soil," is a complete denial of power in the government of Porto Rico to dispose of public lands. (63 Opin., ut supra.)
It seems fitting here to examine briefly the bases and extent of the President's power to create a public reservation by Executive order or proclamation.
A reference is found in the act of September 4, 1811 (5 Stat., 153), of which a portion of the eighth section is preserved in the Revised Statutes (sec. 2378). That act distributed among the States and Territories a certain residue of the proceeds of sales of public lands, and by the eighth section provided for the grant to certain States of land for purposes of internal improvement, excepting such land was is or may be reserved from sale by any law of Congress or proclamation of the President of the United States." A similar grant is then made to new States as admitted, including the quantity that was granted while such State was under Territorial government. (Sec. 2378, R. S.)
Another instance of the same power is found in sections 2458 and 2459 of the Revised Statutes, by which the reservation of timber lands for naval purposes from vacant and unappropriated lands of the United States was authorized. And a recognition of the established practice of making reservations for military and other public purposes is found in section 2393 of the Revised Statutes, by which the statutory provisions affecting the reservation and sale of town sites on the public lands are declared not to be applicable to such other reservations.
Still another illustration is found in section 24 of the act of March 3, 1891 (26 Stat., 1095), which authorizes the President from time to time to “set apart and reserve in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or underyrowth, whether of commercial value or not, as public reservations, and the President shall, by public proclamation, declare the establishment of such reservations and the limits thereof."
The principle underlying Indian reservations is stated in section 1839, Revised Statutes, by which unextinguished Indian territory is not to be embraced within the territorial limits or jurisdiction of any State or Territory until the tribe interested signifies its assent to the President.
As various reservations for military, naval, and other purposes are abandoned or become useless, Congress has provided for the restoration to the public domain and sale and disposal of the same (e. g., act of July 5, 1984, 23 Stat., 103; sec. 9, act of March 3, 1891, ut supra; act of March 2, 1995, 29 Stat., 811).
Other provisions affecting our inquiry are found in section 355 of the Revised Statutes, providing that no public moneys shall be expended upon any site purchased by the United States for purposes of erecting thereon any armory, navy-yard, light-house, etc., or other public building of any kind whatever, until the opinion of the Attorney-General shall have been had upon the validity of the title, nor until the consent of the State, in which such land or site may be, to the purchase, has been given (See resolution of Sept. 11, 181, from which this section was drawn; 5 Stat., 466). Section 1828 of the Revised Statutes authorizes the President to procure the assent of the legislature of any State within which purchase of land has been made for the erection of forts, etc., without such consent having been obtained; section 4660 authorizes the Light-House Board, under a certain restriction, to purchase the necessary land for new light-houses; and section 4661 provides that no light-house, beacon, public piers, or landmark, shall be erected on any site until cession of jurisdiction over the same has been made to the United States.
Typical laws with respect to such cessions by a State, showing how consent of the local authority is shown or may be obtained, will be found in the act of April 2, 1790 (1 Stat., 106), and the resolution of January 24, 1827 (1 Stat., 245). See also act of June 1, 1872 (17 Stat., 211); act of March 3, 1873 (id., 611); act of September 1, 1888 (25 Stat., 452).
In view of the foregoing principles and laws, therefore, if or so far as the proposed naval base on the Culebra Islands is not included in existing defenses, barracks, or other national property and works ceded by Spain, or in such harbor control as has been reserved to the United States; and since it does not appear that among the reservations to the General Government, express and implied, is embraced some zone or strip of harbor shores formerly belonging to the Crown of Spain and taken over by this Government, and not intended to be surrendered to the local government by the Porto Rican act, it seems to me that 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. Congress may see fit, by some new law, to make it clear that the grant of local control and administration is subject to such exception for national purposes as this case suggests, and may thereupon define the field generally or by special location, establishing appropriate methods and rules of procedure in making Federal reservations from public lands in Porto Rico.
But, in view of existing provisions of law, I hold and advise you that 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 to the administration of the government of Porto Rico by section 13 of the Organic act. Very respectfully,
P. C. KNOX. The SECRETARY OF THE NAVY.
PORTO RICO-RENT OF POST-OFFICE BUILDING.
The Postmaster-General may properly refuse the demand of the Insular
government of Porto Rico for rent for the post-office building at San Juan which belonged to the Spanish Government and came into the
possession of the United States with the cession of Porto Rico. The question whether certain public buildings and structures in Porto
Rico are owned by the United States or Porto Rico, and whether various public utilities and functions are to be controlled or exercised by the National or local government under the treaty with Spain and existing laws, not decided.
DEPARTMENT OF JUSTICE,
October 29, 1901. Sir: I have the honor to acknowledge the receipt of your letter of October 5, in which you state that the post-office at San Juan, P. R., is located in a building claimed to be owned by the Insular government, for which that government demands rent running back to May 1, 1900; that your Department is in doubt whether the building, having belonged to the Spanish Government, and having come into the possession of the United States Government with the cession of Porto Rico, is not a United States Government building, and therefore whether the post-office should not be exempt from rent as any other Government building thus occupied.
You submit the question as to the status of this building, and request my opinion on the query whether the claim for rent is well founded.
The general question whether certain public buildings and structures in Porto Rico are owned by the United States or Porto Rico, and whether various public utilities and functions are to be controlled or exercised by the National or Island government under the treaty with Spain and existing laws, is now under careful review, to the end that a comprehensive determination and settlement may be reached. It may well turn out that the question in this large aspect, or in reference to any particular phase and concrete property right, is one which fitly requires judicial review and decision rather than executive opinion. But although, because of this consideration, I do not now attempt to reason the subject out in the abstract and reach a broad conclusion, I have no hesitation in advising you that you may properly refuse the demand of the Insular government for rent for the postoffice building at San Juan, which you state belonged to the Spanish Government and came into the possession of the United States with the cession of Porto Rico. Very respectfully,
P. C. KNOX. The POSTMASTER-GENERAL.
JUDGES OF POLICE COURT—DISTRICT OF COLUMBIA.
Section 42 of the municipal code for the District of Columbia, which goes
into effect January 1, 1902 (31 Stat., 1196), does not vacate the commissions of the judges of the police court nor require new appointments of such judges.
DEPARTMENT OF JUSTICE,
November 5, 1901. Sir: I have received your request of the 4th instant for my opinion upon the question whether the municipal code of the District of Columbia, which goes into effect January 1, 1902, vacates the commissions of the judges of the police court and requires new appointments of such judges.