
    GUILLERMO ALVAREZ Y SANCHES v. THE UNITED STATES.
    [No. 28947.
    Decided October 28, 1907.]
    
      On the defendants’ Demurrer.
    
    The petition sets up these facts: The claimant, a subject of Spain, living in Porto Rico, purchases a purchasable office in perpetuity (that of procurador of the courts) and receives a patent for the office approved by the King of Spain. After the treaty with Spain in 1898 the military governor of the island issues a general order whereby the office of procurador is abolished and the claimant deprived of it. The chief question in the case is whether the office held in perpetuity was a property right secured to the claimant by the treaty.
    I.. The order of the military governor of Porto' Rico in 1899 abolishing the office of solicitor or procurator was not a tortious act, though it deprived the claimant of an office. The- court has jurisdiction of a suit to recover the value of the office.
    
      II. Such a claim arises out of tlie act of a public officer and not out of the treaty with Spain; and the court is not inhibited from exercising jurisdiction by the Revised Statutes, § 100G.
    III. The Treat of Paris, 10th December, 1898 (30 Stat. L., p. 1751), provides (Art. YIII) that the cession of the island to the United States “ can not in any respect impair the property or rights which -by lata belong to the peaceful possession of property of all hinds.” But this did not prevent the military governor of the island from abolishing a public office because it was purchasable and held in perpetuity under the laws of Spain, nor did it prevent the Government of the United States from ratifying the order of the military governor by the Act nth April, 1900 (31 Stat. B., p. 77).
    IV. When Porto Rico passed into the possession of the United States the sovereignty of Spain passed with it; and the inhabitants became subject to the will of the United States, though their private rights and their relations to each oher remain unchanged.
    V.When the treaty with Spain was negotiated the principle of uti i>ossi(lctis was recognized; and there being no stipulation in the treaty to the contrary, the property of the sovereignty of Spain, including public offices, passed to the Government of the United States.
    VI.The cession of the island to the United States imposed no obligation to indemnify the inhabitants for losses caused thereby.
    VII.An office purchasable and held in .perpetuity may have possessed a property right under the laws of Spain; but when the office passed to and became an office of the United States the right of property therein ceased and disappeared.
    VIII.The public officers in Porto Rico who continued to hold their offices after the conquest and treaty, held at the sufferance of the United States.
    IX.A public office under American law and usage is a trust which can not be a subject of purchase and is not capable of being inherited.
    
      The Reporters’ statement of the case:
    The material averments of the petition will be found in the opinion of the court.
    
      Mr. Assistant Attorney-General Van Orsdel and Mr. Franklin IV. Collins for the demurrer:
    It is axiomatic that when a system of government is des-placed by an entirely different system, the existence of all the functions and attributes of the old government is at once terminated. If the office in question had even a semblance of existence after the expiration of the sovereignty which brought it into being and continued it in existence, it survived only by the sufferance of the new sovereign. In some cases, under international law, previously existing public functions may be continued by the new sovereign, but this rests exclusively in the will of the new sovereign, and such officers act only in conformity with the new system of government established. The sovereignty of Spain was withdrawn from the island of Porto Pico as a result of the war between this country and Spain. With said withdrawal, therefore, the Kingdom of Spain had no power to perpetuate or stipulate for the perpetuation of the office in question, and said office, in fact, by said withdrawal of sovereignty, ipso facto, expired. Upon the termination of claimant’s right to hold the office in question and enjoy the emoluments of the same by the relinquishment of sovereignty in Porto Pico by the Kingdom of Spain, whatever obligation accrued to the deposed officer was solely the obligation of the expiring sovereignty, and it is for Spain and not the United States to compensate him for the loss, if any, which-he has sustained. No debt or obligation was thereby incurred or assumed on the part of the United States. Such inference is clearly contrary to the spirit of the treaty and is not to be implied therefrom.
    It was well known and clearly understood by the parties to the convention that upon a ratification of the treaty, Porto Rico was to at once cease to be a colony of the Kingdom of Spain, and that the sovereignty of the Kingdom of Spain, with all that adhered to it, either expressly or by implication, was to cease in said island. True, the treaty contained a stipulation that this relinquishment or cession should not “ impair the property or rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities * * * or of private individuals.” This stipulation does not by any means suggest or imply the respecting or preserving of any fraction of the deposed sovereignty.
    
      The citizens of Porto Rico, immediately upon the ratification of the treaty, came within the protection of the Constitution equally with all citizens of the United States in the enjoyment of all the rights therein guaranteed pertaining to the protection of life, liberty, and property. (Downs v. Bidwell, 182 U. S., 263.)
    It follows that if any part or attribute of the government of Porto Rico as established by Spain had become private property, that also, under the stipulations of the treaty, was to go. The paramount consideration of the whole transaction was that Spanish Government, with all its attributes and ramifications, as administered in Porto Rico, was to be withdrawn, and the whole government of the island immediately turned over to the United States. After this withdrawal, any private property which remained ivas to be protected.
    The office in question was not private property, within the meaning of the provisions of the treaty, and hence was entitled to no such protection. In fact, the office had already gone, and could not claim any protection from the United States upon its assumption of authority. If the officer remained for a short time after the assumption of authority by the United States and exercised the functions of his office, he assuredly did so by the mere permission of the new sovereign to meet the exigencies of the situation, but there ivas and could be no recognition of the valid existence of the office in question.
    It is not alleged in the petition that the Government of the United States, either directly or indirectly, ever gave any legal sanction or recognition to the official authority of the officer in question, or in any way recognized the 'office as one existing under the authority of the United States.
    Article 7 of the treaty of Paris provides as follows:
    “ The United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind, of either Government, or of its citizens or subjects, against the other Government, that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of war.”
    
      The above provision is broad in its nature and sweeping in its terms. Under it, it is more than questionable whether the claimant, in any event, has any right of recovery.
    Claimant’s right of. action, if any ever existed, accrued at the conclusion of the treaty, when Spain agreed to remove its system of government from the island. The termination of the official existence of the claimant not only occurred when the treaty was concluded, but ivas effected through the treaty itself, and if any obligation exists it belongs to Spain, and any action, therefore, against the United States is concluded by the above stipulation of the treaty.
    It can not be contended that it was contemplated by the parties to the-treaty that any property right in the office in question ivas to be protected. It must be considered as entirely without the spirit and intent of the treaty. The minds of the parties to said treaty could not meet upon any such proposition, at least so far as the concurrence of the United States is concerned, in favor of the protection of this kind of property, if such it can be called. No such property rights are recognized by the laws of this country, or, in fact, by the laws of civilized nations, and hence it is unreasonable to suppose that the parties to the convention ever had in mind, or did, in fact, bind themselves to protect any such pseudo-property rights. That any property right exists in an office is absolutely contrary to the letter and spirit of our law.
    Under our system of government an officer acquires neither a vested right nor property right in the office which he holds. (Mechem on Public Officers, secs. 463, 464.)
    The stipulation in the treaty relied upon by claimant was merely to respect private property of a tangible nature, which should continue to exist in Porto Eico, and which did not constitute any part or parcel of the sovereignty of Spain, which was about to depart.
    While it is true that the United States by the treaty of Paris agreed to pay and did pay to Spain the sum of $20,000,000 in connection with the cession of its colonial possessions to the United States, including the island of Porto Eico, it will not be seriously contended, and, in fact, the stipulations of the treaty are to tlie contrary, that it assumed the debts of Spain in the island of Porto Rico or its obligations to its citizens or subjects. This is what the claimant in his petition asks the court to declare as a conclusion of law in its judgment in his favor.
    It has been held by the courts of this country that—
    “ Public offices are trusts held solely for the public good. Agreements for compensation to procure these appointments are viewed as inconsistent with sound morals and public policy. (Tool Go. v. Norris, 2 Wall., 55.)
    The above being true, and it is unquestionably true according to the highest judicial standards of our law, as well as international law, what shall be said of an office of the character mentioned in the petition herein, which was bought and sold as a commercial commodity?
    That it is “ inconsistent with sound morals and public policy ” is beyond question.
    Again, it has been held that—
    “ The incumbent of an office has not, under our system of government, any property in it. His right to exercise it is not based upon any contract or grant. It is conferred as a trust to be exercised for the benefit of the public. Such salary as may be attached to it is designed to enable the incumbent the better to perform his duties by the more exclusive devotion of his time thereto. A public office and its creation is a matter of a public, not a private, law. The decision of some States proceeds upon the ground that an incumbent has a property in his office, and that he can not be deprived of his right without the judgment of a court; a view supported by the doctrines of the common law, which regarded an office as a hereditament, but which has no foundation in a representative government.” (State ex rel. Attorney-General v. Hawkins, 44 Ohio St., 109-113.)
    An office is not property, but a privilege or a prerogative, which can be taken away without compensation whenever the public welfare requires. (Burrows v. Peyton, 16 Grat., 410.)
    The office in question was a mere function or public station created by the Crown of Spain. It was not, nor can it be regarded as, property of a tangible nature. While sopken of as salable, it was not private property, nor property of any nature, but a jpublic office under the Crown of Spain, as much so as that of the highest officer of the Spanish regime in Porto Pico.
    If, therefore, the contention of the claimant is correct, that the office in question was private property, and subject to protection as such under the terms of the treaty, then the highest officials of Porto Pico — in fact, all the Spanish officials of said island — were entitled to like protection and have equal claim against the United States for the offices which they were compelled to surrender by reason of the withdrawal of Spanish sovereignty from said island.
    It is a well-settled rule of international law that acquired territory is held by the new sovereignty subject to its own institutions, and not to the former one’s. (Yattel’s Law of Nations, B. 1, c. 19, secs. 210, 244, 245, and B. 2, c. 7, sec. 80; Pollard''s Lessee v. Hagan, 3 How., 225.)
    But if it be said that, according to the laws of Porto Pico and of the Kingdom of Spain, the office in question was “ personal property,” and that by the treaty of Paris it was provided that the relinquishment or cession of Spanish sovereignty in and over Porto Pico “ can not in any respect impair the property or rights * * * of private individ-
    uals,” it may be said, and with great force, that the law of nations does not require any nation to protect property the existence of which is inconsistent with its institutions. Thus, it would not protect slave property, titles of nobility, monopolies, or purchasable offices, which form of barter is clearly inimical to the spirit of our laws and the genius of our institutions.
    Furthermore, it is a well-established principle of international law that where the enforcement of the foreign law Avould contravene some important and established policy of the state of the forum, or where the enforcement of such foreign law would involve injustice and injury to the people of the forum, or where such enforcement would contravene the canons of morality established by civilized society, the enforcement of such foreign laws is forbidden. ■ (See Minor’s Conflict of Laws, chapter 2, sec. 5, p. 9.)
    In the ninth paragraph of the petition of claimant it is alleged that a military government was maintained by the United States in the island of Porto Pico from about the month of October, 1898, to April 30, 1900, and that Brigadier-General Davis, of the United States Army, was in command of said island as military governor from May 8, 1899, to April 30, 1900.
    In paragraph 10 it is alleged that.during the maintenance of said military government in said island “ said Davis, in violation of the provisions of the treaty of Paris, of the Constitution and laws of the United States, and the laws then in force in Porto Pico, and of the rights of this claimant, on or about the 31st day of August, 1899,” issued the order complained of.
    Paragraph 11 of the petition also alleges that “ said order was issued by said Davis without any notice- whatever to this claimant and without affording him any opportunity to be heard, and without any complaint as to the manner in which said claimant was exercising his rights and duties.”
    Assuming, for the purposes of argument, that the above allegation of the petition, which is a mere conclusion of law, and is not admitted by this demurrer, is true, that General Davis did not.deprive the claimant of his office wrongfully, it was the mere commission of a tort on the part of the military governor. As we have seen, the claimant could, under no circumstances, have any property right in the office in question; hence the invasion of claimant’s rights by the abolition of the office constituted the commission of a civil wrong or civil injury on the part of the military governor; in other words, a tort, pure and simple. (Cooley on Torts, 298.)
    The abolition of the office did not create an obligation against the United States of which this court could assume jurisdiction. The cause of action does not arise upon any contract, express or implied, between claimant and the United States, for no contractual relation exists between an officer and the Government, in so far as the right of the officer to continue in office is concerned. A cause of action could not accrue against the Government by reason of its having deprived the claimant of any property, because an officer under the Government has'no property right in the office which he holds. An action can not accrue under the Constitution or any law of the United States, for the office in question is not one recognized either by the Constitution or the laws of this Government. Hence, if the act of General Davis, which is in the petition characterized as a high-handed outrage in violation of the treaty of Paris and the Constitution and laws of the United States, was performed without authority, it was tort, and, of course this court is without jurisdiction of the subject-matter.
    Section 1066 of the Revised Statutes, which is one of the ■provisions prescribing the jurisdiction, powers, and procedure of this court, provides as follows:
    “ The jurisdiction of said court shall not extend to any claim against the Government not pending therein on December 1, 1862, growing out of or dependent on any treaty stipulation entered _ into with foreign nations, or with the Indian tribes.”
    The above act has been interpreted by the Supreme Court in the case of Ex -parte Atocha (17 Wall., 439), the court in that case holding that'—
    “ Claims under treaty stipulations are excluded from the general jurisdiction of the Court of Claims conferred by the acts of Congress of February 24, 1855, and March 3, 1863, and when jurisdiction of such claims is conferred by special act, the authority of that court to hear and determine them, and of this court to review its action, is limited and controlled by the provisions of that act.”
    Congress has not by special act conferred jurisdiction upon this court to hear and determine the case at bar. This is a case clearly dependent upon and growing out of a treaty.
    The office in question died with the ratification of the treaty. The principal effect of the treaty was the banishment from Porto Rico of the Spanish Government, with all its attributes, of which this office was one. It was not the order of General Davis or any provision of the Constitution or laws of the United States that deprived the -claimant of his office, but the treaty. When Porto Rico, with its property and citizens, came under the protection of the Constitution of the United States the office in question had departed. It had
    
      already been abolished by the terms of the treaty; hence, if any cause of action ever did arise, which we deny, it grew out of and is dependent upon the treaty entered into between the United States and Spain. '
    
      Mr. Henry A. Bticlcney in opposition. M. S. Mallet Pre-vost and Mr. George X. McLanahan were on the brief:
    According to the Spanish law in force'in Porto Rico at the time of the cession of that island to the United States, appearances in actions were required to be by a procurador or solicitor. The duties of such solicitors, as described in said laws, consisted chiefly in following the course of the litigation in which they were 'employed and keeping their clients’ attorneys advised and informed of any steps taken in such litigation. Solicitors were entitled by law to receive a reasonable compensation for their services.
    The number of solicitors holding their offices in perpetuity was limited by law and by custom in each city or town in Porto Rico. The jurisdiction of claimant’s office was confined to the town of Guayama, and the number of solicitors at that town ivas limited to two.
    The Spanish law provided for the transfer of solicitor-ships in perpetuity. In view of the explicit provisions on this subject this can not be doubted.
    Nor can it be contended that, under the Spanish law, the office in question held by claimant did not constitute property under that Ioav. The folloAving provisions of the civil code in force in Porto Rico July 31, 1899, leave no room for doubt on this subject:
    “ Title I. — Chapter Second.
    
    
      “ Article .336. As personal property, are also considered rents or pensions, either for life or hereditary, in favor of a person or family; also purchased public offices, contracts for public service, etc.
    “ Title II.- — Chapter First.
    
    “ Article 349. No one shall be deprived of his property, unless it be by competent authority, and with justified cause for public utility, and nei^er until he has previously been properly indemnified.
    
      “ If this requirement has not been complied with the - judges shall protect and, - in proper cases, replace the condemned party in possession.”
    Moreover, by providing for the reacquisition by the Crown of offices granted in perpetuity, the Spanish Goveriiment recognized that these offices were property. Such reacquisition is expressly provided for by the Code of Civil and Criminal Procedure in Porto Rico in force January 30, 1855. It is apparent that the office in question was not a mere life office, but was an office granted in perpetuity by the Spanish Crown and constituted property under the Spanish law. The holder of this office could not have been deprived of the same by the Spanish Crown without compensation.
    It is to be especially noted that, according to the treaty of Paris, the property or rights which, by law, belonged to the peaceful possession of property of all kinds are not impaired by the relinquishment or cession, and that among the property or rights referred to in that provision are those belonging to private individuals. It is difficult to conceive how the intention of the parties to the treaty to protect the property rights of every description existing in the ceded territories could have been more clearly expressed than by this sweeping provision of the treaty. There is not the slightest intimation that the property rights referred to in the treaty are only those property rights which are known to the common law of England, and the language of the treaty is so general and unqualified that it is obvious that the makers of the same meant to include in this provision all property and rights in the ceded territories, whether the same ivere known to the common law or not. (O'Reilly cle Ca-mara v. Brooke, 135 Fed. Rep., 384.)
    If, however, it is contended that the treaty is ambiguous, which it certainly does not appear to be, the circumstances of the contracting parties at the time of entering intp the treaty may properly be looked into by this court. It can not be seriously contended that the two contracting parties were not civilized nations. The intimation in the brief of the Attorney-General in support of the demurrer, to the effect that Spain is not a civilized country, does not require serious consideration. It must also be conceded that different systems of law always did and do now prevail in the countries of the respective contracting parties — the common law in the United States and the civil law in Spain. Undoubtedly, many kinds of property may have existed under the civil law in force in Spain at the time of the making of the treaty which were wholly unknown to the common law. It must, therefore, be presumed that the makers of the treaty of Paris had these facts in mind in drawing the clause in the treaty above referred to, and must have framed that provision with a view to cover the property and rights known to both the civil and the common law.
    The provisions of the treaty of Paris must, therefore, be held to include all property and rights under the civil law in force in the ceded territories. If this had not been contemplated, the property and rights which were not intended to come within its provisions would have been specifically excepted therefrom. As was stated by Chief Justice Marshall in the case of The United States v. Glarhe (8 Peters U. S. R., 436), at page 462:
    “ If the United States were not content to receive the territory charged with ,titles thus created, they ought to have made and they would have made such exceptions as they deemed necessary.”
    It is also a well-defined principle of international law that in case of ambiguity in a treaty, that interpretation should be placed upon the same which goes most strongly against the party who prescribed the terms thereof. {Vat-teVs Law of Nations, Book IY, Chap. Ill, sec. 32.)
    The Attorney-General, in his brief in support of the demurrer to the claimant’s petition, apparently seeks to evade the express terms of the treaty above referred to by invoking two principles:
    First. The principle that a new sovereign holds acquired territory subject to its own institutions, and not subject to the former ones.
    It is not apparent how this principle in any way adversely affects the justice and validity of the claimant’s claim against the United States. The question before the court is whether the United States did not become liable to compensate a citizen of Porto Bico for depriving him of Ms property taken for public use, such property having been recognized as such by the treaty of Paris. It is submitted that under this very principle invoked by the Attorney-General, the last clause of the fifth amendment to the Constitution of the United States requires that compensation be made to the claimant for the deprivation of the office held by him.
    The constitutional provisions for the security of property should be liberally construed. Boyd v. United States (116 U. S., 616), at page 635:
    “ Constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it- consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, against any stealthy encroachments thereon. Their motto should be obsta frineifiis. We have no doubt that the legislative body is actuated by the same motives; but the vast accumulation of public business brought before it sometimes prevents it, on a first presentation, from noticing objections which become developed by time and the practical application of the objectionable law.”
    The authorities cited by the Attorney-General in support of the proposition advanced by him fully sustain the contention of the claimant that compensation should be made. In Vattel’s Law of Nations, Book I, Chapter XX, section 244, cited in the brief in support of the demurrer, the following passage occurs:
    “ When, in a case of necessity, he (the new sovereign) disposes in like manner of the possessions of a community, or an individual, the alienation will, for the same reason, be valid. But justice requires that this community, or this individual, •be indemnified at the public charge; and if the treasury is not able to bear the expense, all the citizens are obliged to contribute to it; for the burdens of the State ought to be supported equally, or in a just proportion. The same rules are applicable to this case as to the loss of merchandise thrown overboard to save the vessel.”
    Second. The second principle invoked by the Attorney-General is to the effect that where the enforcement of foreign law will contravene an important and established policy of the State, of the forum, or where the enforcement of such foreign law involves injustice and injury to the people of that forum, or where such enforcement will contravene the canons of morality established by civilized society, such foreign law will not be enforced.
    It is apparently claimed that because of these principles the United States did not engage to protect property rights in Porto Rico similar to that of the claimant in his office. It is not clear how the above principles are applicable to the case at bar, inasmuch as the cases cited in Minor’s Conflict of Laws in support of those principles simply sustain the proposition that a court of justice will not lend its jurisdiction to the enforcement of a vicious or immoral contract. Nor does the Attorney-General specify how the claimant’s office falls within any of the classes above referred to. The duties of the claimant as solicitor are fully set out in claimant’s petition, and the truth of these allegations is admitted by the demurrer. An examination of these allegations of the petition makes it apparent that his duties were wholly ministerial, and that he exercised no judicial function or functions involving the exercise of discretion whatsoever. His duties were such as might properly be performed by the clerk of any court of justice.
    The contention of the Attorney-General that the rights of the claimant for compensation for the loss of his office were relinquished by Spain under Article VII of the treaty of Paris is wholly without merit. The provisions of this article are as follows:
    “ The United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind, of either Government, or of its citizens or subjects, against the other Government, that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war.”
    By the very wording of this provision, the only claims mutually relinquished by the contracting parties were such claims as arose “ prior to the exchange of ratifications of the present treaty.” The only authority cited by the Attorney-General in support of the contention that the claimant’s claim comes within this provision is the case of J. Ribas ¶ Hijo, v. The United States (194 U. S., 315). An examination of this case makes it obvious that it does not stand for the proposition for which it is cited. The court, in that case, expressly stated that the plaintiff’s claim arose prior to the exchange of ratifications of the treaty of Paris.
    It can scarcely be contended that the claimant’s claim against the United States arose prior to the ratification of the treaty. His office was not abolished by General Davis until August 31, 1899, after claimant had exercised the functions of the same for four months subsequent to the ratification of the treaty. The adoption of the act of General Davis by the United States did not occur until April 12, 1900.
   Peelle, Ch. J.,

delivered the opinion of the court:

To the petition filed herein the defendants interpose a demurrer, assigning as ground therefor “ that the petition does not allege facts sufficient to constitute a cause of action.”

The facts averred and which are material to the case are that the claimant, a native citizen of the island of Porto Pico, did, on the 8th day of April, 1878, purchase from one Florencio Berrios y Lopez for a valuable consideration a certain purchasable office known as “numbered procurador of the courts' of first instance of the capital of Porto Pico,” at Guayamo, in perpetuity, and that the provisional patent issued therefor by the governor-general of said island was, on or about October 31, 1881, approved by the King of Spain through the minister of the colonies of the Kingdom of Spain in accordance with the laws, practice, and custom of the Kingdom-of Spain,- by virtue of which it is avei’red that the claimant “ became vested with all the rights and privileges appurtenant to said office under said laws,” which said office was then and there reasonably worth $200 per month; and that being thus clothed the claimant exercised all the rights and privileges pertaining to said office of pro-curador or solicitor from the time said office was confirmed in him until August 31, 1899, when said office was abolished, as hereinafter set forth.

That the United States took possession of said island during their war with Spain and .maintained a military government therein from about October, 1898, to April 30, 1900. That while in the possession and military control of said island, to wit, December 10, 1898, the treaty of peace between the United States and the Kingdom of Spain was concluded, and having been signed by the respective plenipotentiaries at Paris was subsequently ratified by the respective Governments,' which ratifications were,. on April 11, 1899, exchanged at the city of Washington and on the same day proclaimed by the President.

That by virtue of article 2 of said treaty the island of Porto Rico was ceded to the United States; and by article 8 it was “ declared that the relinquishment or cession, as the case may be, to which the preceding paragraph refers, can not in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals of whatsoever nationality such individuals may be,” etc.

That the office so purchased- and held by the claimant was on said 31st day of August, 1899, abolished by General Order No. 134, issued by General Davis, in command of said island as military governor thereof, paragraphs 11, 12, and 13 of which are as follows:

“ XI. The office of solicitor (£ procurador ’) is abolished. Those who have heretofore practiced as such before any court and are of good repute shall, in default of lawyers, have the right to be appointed municipal judges or clerks of municipal courts.

“ XII. Hereafter litigants who do not appear personally shall be represented before the Supreme Court and district courts exclusively by a lawyer, no powers of attorney being-necessary therefor; it shall be the duty of the courts to suspend from the practice of his profession any lawyer .who shall, without authority, assume to represent a litigant; but this shall not affect the civil or criminal liability which such lawyer may thereby incur.

“ In the municipal courts, litigants may represent themselves or may be represented by an attorney in fact, resident of the place.

“ XIII. For the purpose of conducting the proceedings, lawyers may make use of such agents as they may by writing designate to the court.”

That said order was issued without any notice whatever to the claimant and without complaint as to the manner in which the claimant was exercising the duties of said office.

That thereafter by section 8 of the act of April 12, 1900 (31 Stat. L., 77, 79), being an act entitled-“An act temporarily to provide revenues and a civil government for Porto Pico, and for other purposes,” Congress ratified, among others, said order in these words:

“ Sec. 8. That the laws and ordinances of Porto Pico now in force shall continue in full force and effect, except as altered, amended, or modified hereinafter, or as altered or modified by military orders and decrees in force when this act shall take effect, and so far as the same are not inconsistent or in conflict with the statutory laws of the United States not locally inapplicable, or the provisions hereof, until altered, amended, or repealed by the legislative authority hereinafter provided for Porto Pico or by act of Congress' of the United States * * * .”

That the claimant by virtue of'the laws of Spain had a vested property right in and to said office at the time the general order was issued, and that by reason of said order the claimant was deprived of his right to discharge the duties of said office and to receive the emoluments thereof to his loss and damage in the sum of $50,000.

The substance of the facts averred is that the claimant held by purchase in conformity with the laws, usage, and customs of the Kingdom of Spain in force in the island of Porto Pico the office of procurador or solicitor in perpetuity, the salary of which was about $200 per month, and that by virtue thereof he had a vested property right in and to said office when the same was abolished as aforesaid, and that the abolition of said office operated as a taking of private property for public purposes, for which no compensation has been made.

The defendants, without plea thereto, raise the question of jurisdiction, claiming, in substance, first, that the act of the commanding general as military governor in abolishing the office so held by the claimant was wrongful and unlawful and, therefore, tortious, and being tortious this court is without jurisdiction. We can not agree with the defendants that the act abolishing said office was unlawful or wrongful, though so averred in paragraph 10 of the petition. The order issued abolishing the office was in conformity with the •laws and usages governing the change or modification of the laws of newly acquired territory by conquest or cession; and being within the possession and rightful powers of the United States as the conqueror, the act abolishing the office was not tortious, and for that reason the defendants’ contention can not be sustained.

Second, the defendants further contend that whatever claim exists in favor of the claimant grows out of and is dependent upon the treaty between the United States and the Kingdom of Spain, by which said island was ceded to the United States, and that, therefore, under Revised Statutes, section 1066, this court is prohibited, from taking jurisdiction. But even if said section has not been repealed by the Tucker Act, we think the contention is untenable, because the claim as averred, if it exists, arises out of the act of the general in command of said island as military governor in abolishing the office, and not out of the treaty.

If, when the office was abolished, the claimant had any property right therein, then such right was preserved to him by article 8 of the treaty; but in the view we take the claimant had no property right in the office at the time of the issuance of said order; and having no property right therein, there is no claim growing out of or dependent upon the treaty; hence the defendant’s contention can not be sustained.

This brings us to the main question in the case, i. e., Did the claimant at the time of the issuance of the order abolishing* the office have any property right in the office which he held; and, if so, did said order operate to deprive him thereof for the public use ?

During the war with Spain the United States, in the exercise of their belligerent right, took possession by military force of the island of Porto Rico, then under the dominion and sovereignty of Spain, and, as averred in paragraph 9 of the petition, maintained a military government in said island from about October, 1898, to April 30, 1900.

When the United States thus took and maintained possession of said island, the sovereignty of Spain was thereby appropriated by them, and the inhabitants of said island became subject to the will of the United States, though their private rights and their relations to each other remained the same. (The Fama,, 5 C. Rob., 126; United States v. Perche-man, 7 Peters, 86; United States v. Hayward, 5 Gallison, 52.)

And as the military occupation of said island was firm, the United States, by virtue thereof, acquired all the rights of the displaced sovereignty, including the right to acquire complete title at least to all movable property of a public character belonging to Spain, and as well the public offices therein having to do with the administration and execution of the laws in said island. (United States v. Rice, 4 Wheat., 246-254; Fleming v. Page, 9 How., 603-615.)

When the treaty of Paris of December 10, 1898 (30 Stat. L., 1754), was negotiated, the principle of uti possidetis was recognized, i. e., the right to retain possession of the territory acquired by force during the war, and as there is no stipulation in the treaty to the contrary, the island was left in the state in Avhich it was found. Hence the title of the conqueror in the public movable property as well as to the public offices created by the sovereignty of Spain could not thereafter be questioned. (Wheaton’’s International Law, sec. 545.)

However, whether the island be considered as acquired by conquest or by cession on the basis of possession of the territory by force, the inhabitants in either case became subject to the sovereignty of the United States', the difference in substance being that in case of conquest confirmed by a treaty grounded on the principle of uti possidetis, the sovereignty is appropriated, while if acquired by expressed cession the sovereignty is transferred by the act of the State making the cession. (Hall’s International Law, sec. 206.) The former, however, was the course which Spain was forced to pursue; that is, by virtue of the military possession of the island, Spain was forced, as a condition of peace, to cede to the United States the island so acquired and held, not that the cession was necessary to give to the United States the sovereign control of the island, but it operated to confirm in them all the rights which they had theretofore acquired by conquest.

The release of the island from the sovereignty of Spain, whether effected by coercion or by conquest, imposed no obligation upon the United States to indemnify those who may have suffered loss of property by such cession. (1 Kent's Commentaries, p. 178.) If, therefore, the claimant’s loss of property in the office he held by purchase was due to the cession so made, rather than by conquest, no liability attached to the United States to make compensation therefor.

Conceding that prior to the conquest the claimant had, as between himself and Spain, a property right in the office, such right under the laws of Spain existed only by virtue of said office being a salable one in perpetuity, which office and tenure rested wholly in the sovereignty of Spain, so that when the sovereignty of Spain was displaced and superseded by the sovereignty of the United States and confirmed by the treaty without any words therein making the office perpetual in the claimant under the sovereignty of the United States, all right of property in and to said office was lost by the withdrawal of the sovereignty of Spain.

After the conquest of the island and the confirmation thereof by the treaty as aforesaid, the claimant, if he continued to hold said office, did so at the sufferance and will of the United States, and no right of property in said office can be predicated on such continuance in office.

The office so held by the claimant, as well as all other offices having to do with the execution and administration of the laws in force in said island, were subject to the will and control of the United States exercised through the President as Commander in Chief of the Army and Navy of the United States, or the Congress; and being so subject, and there being no restrictive words in the treaty, the claimant could have been removed from office or the office abolished, as was done at the will of the President acting through the military governor, without imposing upon the United States any obligation to compensate the incumbent of said office for any loss he may have sustained thereby. True, under the rules of international law, the laws, uses, and municipal regulations in force in the island at the time of the conquest or cession remained in force until changed by the new sovereign. (Mitchell v. The United States, 9 Peters, 711-735.) But such change is an inherent right to be exercised at the will of the conqueror without condition or restriction unless imposed by the terms of the treaty.

As no right of property in the office held by the claimant was reserved to him by the treaty none survived it, and, therefore, when the office was abolished the claimant had no property right therein which was the subject of a taking for public use.

The provisions of article 8 of the treaty, upon which the claimant relies for the preservation of his right of property, are merely declaratory of the rights which belong to the inhabitants of a territory acquired by conquest or treaty. That is to say, their rights of property not taken from them by order of the conqueror remain undisturbed. In other words, as before stated, the cession or conquest of territory does not affect the rights of private property. (The Fama, 5 C. Hob., supra.)

But in the present case, as the claimant’s right of property was annexed to the public office which he held by purchase in perpetuity and existed wholly in-the sovereignty of Spam, such right was exceptional, and in the absence of any words making the office perpetual in the claimant under the sovereignty of the United States, was taken away by the act of Spain when she withdrew her sovereignty. In other-words, the claimant’s exceptional right of property in the office which he held was not preserved to him by the terms of the treaty; and not being within the ordinary rules protecting the private property of the inhabitants of territory acquired by conquest or cession, he stands on no better terms than other public officers in said territory.

We have thus considered the case-upon the theory of the claimant having, as between himself and Spain, a property right in the office which he held, though under the laws of the United States such office is a public trust in which the .incumbent can have no property interest. (United States v. Hartwell, 6 Wall., 385-393.)

Nor is a public office with us the subject of sale, purchase, or barter. (Taylor v. Beckman, 178 U. S., 548-577.)

Nor can such office be termed a hereditament, or a thing capable of being inherited. {3d Kent's Commentaries, 454.)

The right to exercise an office in the United States is not based upon contract or grant, but is conferred as a trust to be exercised for the public benefit. (United States v. Hartwell, supra.) True, some of our States proceed upon the theory of the incumbent having a property right in the office of which he can not be deprived without the judgment of a court, but such view has no foundation in a representative government. (Anderson's Law Dictionary, 727; State ex rel, Atty. Gen. v. Hawkins, 44 Ohio St., 199; Donahue v. County of Will, 100 Ill., 94.)

But we need not pursue the question any further as there is no language in the treaty perpetuating the office in the claimant, and therefore it must be held that in respect to his right to the office in question he stands upon the same ground as other public officers in the island at the time of the cession of the territory.

For the reasons stated the demurrer must be sustained and the petition dismissed, which is accordingly ordered.

Howry, J., was not present when this case was tried and took no part in the decision.  