The sun., 1903-11-23
GEN. WOODS SECOND VIOLATION
Or THE FORAKER Law.


HAVANA. Nov. 17.-That the 90 called
Foraker law effectively prohibited the
granting Of any franchiseooQr concessions
in the island Of Cuba during the term OF
American occupation, and that 1t also pro-
hibited the recognition and valuation OF
inchoate franchises or concessions holding
over from the Spanish regime, is an issue
which Is in no way open to discussion
The valuation OF inchoate concessions was
no more legally possible under that law
than was the granting of original applica-
tions. If either was possible, both were'
and the law estopped both.
A recent letter referred to the matter OF
a recognition and valuation OF one OF these
inchoate concessions-that known as the
Jai Alai-by Military Governor Wood, and
asserted that the act constituted a violation
of the Foraker law. A similar violation
also appears in that which is k own as the
Castafieda Concession.
On Oct. 20, 1901, Civil Order No. 23l was
issued in Havana in the following terms:
The Military Governor Of Cuba directs the pub
llcation OF the following order
Mr.. Tburco Castaheda y Triana having pre-
sented 10 the Military Governor for approval an
alleged concession obtained by purchase from
Ovidio Giberga Gall, granted by tho Governor
General of the island on Oct 30 1894, tho Mhitaly
Governor states that the United States makes no
objection TO this alleged concession by Spain, nor
TO the terms nor conditions thereof. VIZ: Tho
installation Of an electrical plant In tho city Oh
Havana TO furnish electric light 10 tho same pro-
vided said grant was made pursuant TO the law.
authority and procedure OF tho laws OF Spain In
force In the terr tory to which the concession per-
tains at the time the granting was made.
The question of authority and procedure under
Spanish law arc TO Be determined by the courts
OF Cuba when involved In cases properly pending
therein. Signed EDWARD CARPENTER,
Acting Aldo do Camp.
Two special points are to be noted IN this
order. One Is the reference to the alleged
concession" 1t is fair inference that Gen
Wood was unable to recognize the conces-
sion as an actual grant, by completed act.
Of the Spanish Government. The other
point is that had it been such an actual
grant, by completed act, reference OF the
matter to Gen. Wood for his approval would
have been as superfuous as the submission
of question Of the rights Of the Marianao
Railroad or any other enterprise conducted
under franchise or concession. In the
face OF these facts 1t is difficult to see how
this alleged concession can be regarded
otherwise than as inchoate and quite within
the scope OF the opinion given. In another
matter, by Attorney General Griggs (see
'Opinions OF the Attorney General Vol. ~,
page 654) that 'being inchoate and inoom-
plete, lacking certain public action. 1t ID not
a complete and vested franchise or con-
cession, and the War Department Is vithout
po,rer to exercise the preroeatives Of the
Government to grant or complete such
concession
Had the matter rested at this point, It
might be held that this recognition Of the
salleged concession was In It's nature tenta-
tive and inchoate, and therefore invalid
until determined by judicial proceedings.
But this does not appear to have been the
case. The Spanish American Light and
Power Company, operating under an un-
questionable grant. began q suit In the
courts, contending that the original au-
thorization to Giberga was no more than q
limited period, or license, and that even that
had been rendered invalid through the fail
ure Of the holder to comply with the pro-
visions Of the permit.
Yet while the case was still pending In the
courts there was issued, on April 1s, 1902,
Civil Order No. 1po. which appeared a. .
permit which, .stbject to the provisions
Of Civil Order No. ssi' Quoted above)
authorized .Mr. Tiburcio Casta heda y
Triana to proceed with the necessary con-
struction work authorized by the alleged
concession therein referred to- This was
followed by long and detailed statement
OF conditions and specifications for the per
formance OF the work. This order may
be said to have had two results. By au-
thorizing actual work under the alleged
concession it's validity and legality were
definitely recognized. Otherwise, the Mill
tary Governor countenanced and by his
act encouraged an unlawful proceeding.
Also, by permitting Castaieda to proceed
with his work and to incur expense in con-
nection Herewith, the value represented
became q vested property right which was
OF Article ". Of the Platt Amendment
But there is a sequel to this. Repre-
sentatives OF the Light and Power Com
pany, deeming their rights to be Illegally
infringed and their interests endangered
by the competition Of Don Tburcio. ap-
peared in person at the Office OF the Score
tary OF War in Washington. They laid
the case before Mr.. Root, doubtless from
their own point Of view, but presumably
with at least a fair regard for facts. This
was during the month Of May, Immediately
before the American withdrawal. 1t ap-
pears that their presentation Of the facts
in the case was 30 convincing that the Score
tary OF War at once sent, by telegraph It is
said, peremptory instructions to Gen. Wood
to revoke his order. Inasmuch as the aim
and purpose Of Mr.. Roots visitors was not
merely to suspend Cataheda's actual opera
tions, but to demonstrate the worthlesmess
Of his claims to valid concession, 1t is a
fair assumption that 1t was Mr.. Roots pur-
pose that Gen. Wood revoke the step by
which he had given validity to the alleged
concession
Gen. Woods manner OF complying with
the instructions Of bis superior were the
subject Of no little amusement to some Of
those who were in Havana at the time. and
there were even those who said that Gen.
Wood had outwitted and stolen march
on the Secretary. He revoked the permit
but did not revoke his recognition Of the
salleeed concession As Article II. Of
Civil Order No. 100. May II, 1902. there ap-
peared the following:
order No. 100. current series, these Headquarters.
published in the Gazette OF Hardna. April 49, 1902
is hereby revoked. Nothing In this order shall be