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within and subject to the jurisdiction of the United States to the extent of its constitutional power, and the power is not in dispute. Ex parte Curtis, 106 U. S. 371; United States v. Newton, 9 Mackey (D. C.), 226.
MARIA FRANCISCA O'REILLY DE CAMARA, COUNTESS OF BUENA VISTA, v. BROOKE, MAJOR GENERAL, U.S. A.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK.
No. 104. Argued February 28, March 2, 1908.-Decided March 16, 1908.
A tort can be ratified so as to make an act done in the course of the princi
pal's business and purporting to be done in his name, his tort; and the rule of exonerating the servant when the master assumes liability is still applicable to a greater or less extent when the master is the sovereign.
The Paquette Habana, 189 U. S. 453, 469. By virtue of an order of the Secretary of War and also by the Platt amendment of the act of March 2, 1901, c. 803, 31 Stat. 897, and the treaty with Cuba of May 22, 1903, 33 Stat. 2249, the acts of the officers of the United States, during the military occupation of Cuba, complained of in this action, were ratified by the United States, and those officers re
lieved of liability therefor. The courts will not declare an act to be a tort in violation of the law of nations or of a treaty of the United States when the Executive, Congress and the treaty-making power have all adopted it. The holder of a heritable office in Cuba which had been abolished prior to
the extinction of Spanish sovereignty, but who, pending compensation for its condemnation, was receiving the emoluments of one of the grants of the office, held in this case to have no property rights that survived
the extinction of such sovereignty. 142 Fed. Rep. 858, affirmed.
The facts are stated in the opinion.
Mr. Frederic R. Coudert, with whom Mr. Paul Fuller, Mr.
Argument for Plaintiff in Error.
Crammond Kennedy and Mr. Howard Thayer Kingsbury were on the brief, for plaintiff in error:
Neither the order of the Secretary of War, nor the “Platt Amendment” was a ratification by the United States of the tortious act of General Brooke.
Neither does the Secretary of War possess any such inherent and plenary powers as to make his order equivalent to a ratification by the United States of a tortious conversion of private property, committed by an army officer in time of peace. The United States Government has expressly recognized that "executive action by the War Department ... is not due process of law.". 22 Ops. Atty. Gen. 518.
General Brooke's order was not, even in terms, included in the ratification of the Platt Amendment. By the express limitation of that statute to “lawful rights" acquired under the acts of the American administration of Cuban affairs, it clearly recognized that rights might be claimed thereunder which would not be lawful, and these it did not attempt to ratify. It did not purport to deal with a particular act of a military officer transferring something belonging to A. over to
In any event, General Brooke is individually liable for his tortious act, irrespective of governmental direction or ratification. Little v. Bareme, 2 Cranch, 170. And see The Charming Betsy, 2 Cranch, 64; Shattuck v. Maley, 3 Cranch, 458; Mitchell v. Harmony, 13 How. 115; Grisar v. McDowell, 6 Wall. 363; Cammeyer v. Newton, 94 U. S. 225; Bates v. Clark, 95 U.S. 204; Kilbourne v. Thompson, 103 U.S. 168; United States v. Lee, 106 U. S. 196; Virginia Coupon Cases, 114 U. S. 269; In re Ayers, 123 U. S. 443; Magahey vi Virginia, 135 U. S. 662; Belknap v. Schild, 161 U. S. 10.
General Brooke's act was a trespass upon plaintiff's property rights and she was entitled to judgment.
The case having been tried by the court without a jury, by waiver, the decision of the trial judge is conclusive and equivalent to the verdict of a jury. Oleomargarine Cases, 195 U. S. 30,
Argument for Defendant in Error.
65, 159. It is therefore not open to dispute in this court that under the law of Spain, which continued in force in Cuba during the American occupation, plaintiff's franchise was a property right which survived the withdrawal of the Spanish sovereignty, that she performed her duty to keep the slaughter-house clean and wholesome; that any nuisance resulting from the discharge of offal from the slaughter-house into slaughter-house creek had been abated prior to General Brooke's order, and that his order was not a valid exercise of the police power. It must have been, therefore, an arbitrary confiscation, and the fact that his motives may have been subjectively meritorious does not justify the trespass. Upon these facts the District Court should have held—and upon the demurrer necessarily and properly did hold-that defendant was liable.
It is immaterial that the plaintiff may have an additional right of action on contract against the United States or any other party.
Where officers of the Government tortiously take property for Government uses, the Government may, by recognizing the property taken as private property, become liable on an implied contract to pay for it, but the plaintiff could only avail herself of such right of action by waiving the individual tort. United States v. Great Falls Mfg. Co., 112 U. S. 645. This she is under no obligation to do.
Mr. Assistant Attorney General Russell for defendant in error:
Whether a public office is an alienable office or periodically elective or appointive, it is everywhere and in all cases a part of the sovereign authority or a vehicle for such authority and cannot survive when the sovereignty departs or is extinguished, and the termination of Spain's sovereignty as a result of war put an end to this office long before General Ludlow or General Brooke issued any order about it.
That anrmination took place prior to or at the ratification of the treaty of peace.
Upon the face of the laws and decrees found by the judge as
facts and notwithstanding his interpretation of them, we say that “the emoluments” of the office, if the office had been pared down to "the emoluments," did not cease to be “emoluments" of an “office,"—emoluments to be collected by virtue of the sovereign authority of which the whole office was a part or a vehicle. No part of the office and no fee or tax collected by virtue of holding it or having held it could survive the sovereignty which had created and maintained. the office and lent the sovereign power to support the tax or fee.
Such an office or privilege was not such®“property” as was ' to be protected under the terms of the treaty with Spain.
Supervision of slaughter-houses and prescribing regulations for their conduct and the disposition of their refuse is a police power inherent in all governments. Slaughter-house Cases, 16 Wall. 61, 62, and 63 and see L'Hote v. New Orleans, 177 U.S. 598; Stone v. Mississippi, 101 U.S. 816; Mugler v. Kansas, 123 U. S. 669; Fertilizing Co. v. Hyde Park, 97 U. S. 668; Dobbins v. Los Angeles, 195 L'. S. 223, 238.
The rule stated in Dobbins v. Los Angeles, 195 U'. S. 223, 235, relative to municipal action applies to the action of General Brooke in this case.
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a writ of error to review a judgment of the District Court dismissing a complaint purporting to be brought under Rev. Stat. § 563, the sixteenth clause of which gives the District Courts jurisdiction “of all suits brought by any alien for a tort 'only' in violation of the law of nations, or of a treaty of the United States.” 142 Fed. Rep. 858. See 135 Fed. Rep. 384. The plaintiff is a Spanish subject and alleges a title by descent to the right to carry on the slaughter of cattle in the city of Havana and to receive compensation for the same. (She does not allege title to the slaughter-house where the slauchtering was done. That belonged to the city.) According to ne complaint the right was incident to an inheritable and alienable
office; that of Alguacil Mayor or High Sheriff of Havana. The office was abolished in 1878, subject to provisions that continued the emoluments until the incumbent should be paid. The plaintiff has not been paid, and in 1895 one-half of the emoluments was sold on execution by consent, the other half remaining to the plaintiff or those whom she represents. On May 20, 1899, the Island of Cuba being under the military jurisdiction of the United States, Brigadier General Ludlow, then governor of Havana, issued an order that the grant in connection with the service of the city slaughter-house, of which the O'Reilly family and its grantees were the beneficiaries, was ended and declared void, and that thenceforth the city should make provision for such services. The owners were referred to the courts and it was decreed that the order should go into effect on the first of June. In pursuance of the. same, it is alleged, the plaintiff was deprived of her property. She appealed to the defendant, then military governor of Cuba. On' August 10 he issued an order, reciting the appcal, and stating that, it being considered prejudicial to the general welfare of Havana, etc., and in view of the cessation of Spanish sovereignty, the office of Alguacil Mayor de la Habana, together with all rights pertaining thereto or derived therefrom, was thereby abolished, and the right of claimants to the office or emoluments was denied. The city thereafter was to perform the services. It is alleged that by this action the plaintiff was prevented, and to this day has been prevented, from carrying out the duties and receiving the emoluments mentioned above. The complaint ends by alleging violation of the Treaty of December 10, 1898, 30 Stat. 1754, and of General Orders No. 101, of July 18, 1898, issued by the President through the Secretary of War. It also sets up the Constitution of the United States and the Spanish law in force before the Island was ceded by Spain.
The answer denies the plaintiff's right, but admits the passage of the order, and sets up a ratification by the United States in the so-called Platt Amendment of the act of Mareh 2, 1901, c.