Official Opinions of the Attorneys General of the United States

CONCESSIONS-Continued.

9. Same-Obligation of the United States. It is for Congress to determine whether any such obligation exists on the part of the United States. Ib.

10. Same-Disposition of the Question-Philippine Cables. 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 government. Ib.

11 Sa: 1e-Similar Concessions in Cuba.—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. Ib.

12. Spanish Telegraph Concessions-Cuba-Infringement by War Department. 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. 425.

13. Same-War Power.-In the maintenance and operation of such line the military officers of the United States in Cuba are exercising a war power under a military occupation of territory wrested by arms from a belligerent. Ib.

14. Same. The question whether the business of the International Ocean Telegraph Company is thereby injuriously affected in contravention of its concession is one the authority to determine which is not vested in the Attorney-General. Ib.

15. Spanish Railway and Telegraph Concessions in Cuba and the Philippines. Opinions of July 26 and 27, 1900 (ante, pp. 182, 195), holding that the concessions granted by Spain to certain railway and telegraph companies in Cuba and the Philippine Islands are not binding as contracts on the United States, Cuba, and the Philippines, or other government replacing Spain, reaffirmed. 451.

CONSTITUTIONAL LAW.

1. Forfeiture of Counterfeit Coin-Due Process of Law.-The seizure and forfeiture of counterfeit coin is not a taking of property without due process of law within the meaning of the fifth amendment to the Constitution. Counterfeit coin is neither property nor the subject of property; it is the product of a felonious act, and outside the law. 458.

2. Same. The due process of law required by that amendment was never designed to apply to such rights as a person unlawfully in possession of counterfeit coin may have in it, but was intended for the protection of substantial rights in lawful property. Ib.

CONSTITUTIONAL LAW-Continued.

3. Wharfage Charges on Property of the United States.-The imposition of a toll or charge by the State Harbor Commissionerers of California on merchandise, the property of the United States, passing to or over the wharves at San Francisco, is constitutional and valid; the charge being for a service rendered, the Government is not entitled to suchservice free of toll. 299. 4. Same-Such Toll or Charge is not a Tax Upon or in Respect of Interstate Traffic, nor a tax upon the instrumentalities and agencies of the General Government, within the prohibitions of the Constitution, but is a charge for the use of property and facilities furnished the Government by the State of California. Ib. CONSTRUCTIVE MUSTER. See ARMY OFFICERS, 4-8. CONTRACTS.

1. Armor Plate Royalty-Harvey Process.-The Secretary of the Navy entered into a contract with the Carnegie Steel Company for the furnishing of armor plate, the contract providing that if the Carnegie Company should be “required” to pay royalty for the use of the Harvey face-hardening process in the manufacture of armor plate under its contract, the United States would reimburse it for the amount so paid. The Carnegie Company, by reason of its contract with the Harvey Company, was estopped from denying the validity of the Harvey patent. It used, as it is claimed, the Harvey process in the manufacture of the armor plate, and, having paid the royalty thereon, presents its claim for reimbursement. The Government denies the validity of the Harvey patent, and contends that no distinctive feature of the Harvey patent was used. A suit is pending in the Court of Claims which will determine these questions. Held, (1) That if the Harvey patent be valid, it may properly be urged that the Carnegie Company, being estopped from denying the validity of the patent, was therefore "required" to pay the royalty. (2) That the Secretary of the Navy should withhold his approval of the claim until the question of the right of the Harvey Company to collect royalty from the Government has been judicially determined in the pending suit. (3) The claim of the Bethlehem Steel Company for reimbursement for royalty paid, being based upon a contract similar to that of the Carnegie Company, the Secretary should likewise withhold his approval of the claim of the Bethlehem Company. 495.

3. Contract Stipulations-Penalty-Liquidated Damages. Two parties entered into contracts with the proper authorities for the erection of certain buildings at the Soldiers' Home. The contracts provided that in case of failure to complete the work within the times specified a deduction or payment of $25 "per diem" should be made as liquidated damages for each and every day thereafter until completion of the contracts. With nothing to

CONTRACTS-Continued.

show the cause of the delay, whether a trifling or a substantial portion of the work was delayed, or whether any real damage was caused thereby, Held, That the question whether contract stipulations for the payment or deduction of a certain sum "per diem" for failure to perform at a specified time is to be treated as a penalty or as liquidated damages, must frequently depend upon facts and circumstances outside of the contract. No matter in how strong terms the contract provides that the stipulation is to be considered as liquidated damages, it is not at all conclusive of the matter. 105. 4. Same General Principles-Compensation-Penalties.-In determining this question, courts proceed upon the single idea of compensation, and, where this can be done without injury to the party not in default, will treat such provisions as penalties. Ib. 5. Same-Liquidated Damages. Where it is impossible to determine the extent of the damage, courts will generally give effect to the agreement, and treat it as liquidated damages. Even here the idea of compensation must not be violated by fixing a sum greatly in excess of any actual or fairly presumable damage. Ib. 6. Same. Whether the stipulation is to be treated as a penalty or as liquidated damages, the sum to be deducted or recovered is such as will compensate the party for the loss occasioned. Ib. 7. Same-Secretary of War-Board of Commissioners of the Soldiers' Home. If, under the general principles stated and the facts of the case, the Secretary of War shall find that the sum to be deducted is measured by the damages really sustained, the Board of Commissioners of the Soldiers' Home have ample authority to pay said contractors the full contract prices, less damages actually sustained by the delay. Ib.

8. Naval Vessels-Materials and Labor.-The act of August 13, 1894 (28 Stat., 278), entitled “An act for the protection of persons furnishing materials and labor for the construction of public works," relates to contracts for the construction of public buildings, fortifications, river and harbor improvements, etc., which can only be erected upon land, and are commonly understood under the designation "public works." The act does not refer to contracts for the construction of naval vessels. 174. 9. Pass a Loutre-South Pass-Final Payment. The remote possibility that in some way and at some time the crevasse in Pass a Loutre may injuriously affect the channel in South Pass can not justify the United States in withholding final payment on the contract for opening and maintaining said channel after it has been opened according to contract and shall have been maintained for a period of twenty years. 143.

10. Same. The contractor was under no obligation to close the crevasse, unless it was necessary in order to maintain the channel and protect the works. Ib.

CONTRACTS-Continued.

11. Same. The question whether a necessity exists to close the crevasse is one of fact, not of law; and the facts and inferences are opposed to its existence. Ib.

12. Repatriation of Spanish Prisoners.-The treaty of Paris of December 10, 1898 (30 Stat., 1756), contemplates and provides for the repatriation by the United States of all Spanish prisoners captured and held by them, or held and released by the insurgents in Cuba and the Philippines-soldiers and civilians-men, women, and children, and whether their detention was originally voluntary as to them or otherwise. 9.

13. Same-Contract.-To carry out the provisions of that treaty the War Department entered into a contract with Ceballos & Co., by which that company agreed to transport to Spain "such number of prisoners of war and persons as may be designated by the Secretary of War." Under that contract the authorities of the United States only were authorized to decide what persons came within the classes described in the treaty and the contract, and the company was bound to receive and transport all who were thus tendered. Ib.

14. Same.—The United States had the right to adopt, as against itself, as liberal a construction of that treaty as it chose; and the company having in good faith performed its part of the contract, the payment therefor can not be affected by the fact that the agent of the United States exceeded his authority by tendering for transportation some persons who, as afterwards decided, did not come within the purview of that treaty. Ib. 15. Same-Contract not Ultra Vires.-The contract being for the transportation of prisoners only was not ultra vires the Secretary of War. The most that can be said is that the United States made

a mistake in tendering for transportation some persons not within the purview of the contract. Ib.

16. Same-Officers"-"Other Persons."-The word "officers" used in the contract includes as well civil as military officers; and the term "other persons" includes all persons other than officers. Ib.

17. United States-Equitable Interest in Realty-"Zucker" Tract.-The United States entered into an agreement with C for the purchase of a tract of land, not including buildings, at a price named per acre, a portion of which land C owned and was to convey to the United States, he expressly agreeing that if the balance of the tract could not be purchased by the United States within the price named per acre, then he would pay all expenses of a condemnation proceeding to acquire the same, which might be in excess of the price agreed upon. The condemnation proceedings cost more than the price named, and the excess was deducted from the amount otherwise due C for the portion of

CONTRACTS-Continued.

the tract conveyed by him. Held, That the title to the buildings acquired by the United States as a result of the condemnation was a bare legal title, and that it is held in trust for C. 392. 18. Same-Purchase of Equitable Interest-Appropriation for "Barracks and Quarters."-This equitable interest may be purchased by the United States from the appropriation for "Barracks and Quarters" made by the act of May 26, 1900 (31 Stat., 205), which the construction of the buildings therein mentioned, but also authorizes not only the purchase instead of suitable buildings already constructed. Ib.

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Official Opinions of the Attorneys General of the United States: Advising ...