US SUPREME COURT DECISIONS

No action can be maintained against the United States for the destruction or taking of property under the Tucker Act of March 3, 1887, c. 359, 24 Stat. 505, unless the United States is bound by express or implied contract to compensate the owner therefor or unless the case be one not sounding in tort.

Under the recognized rules of war, Cuba, being a part of Spain, was during the war of 1898-1899, enemy country, and all persons residing in Cuba pending the war were to be deemed enemies whatever their nationality, including citizens of the United States there domiciled and doing business.

Property of citizens of the United States in Cuba was during the war with Spain to be regarded as enemy property subject to the laws of war, and to be destroyed whenever military necessity so demanded; nor could a citizen of the United States invoke the protection of the Constitution pending the war for his property in Cuba, any more than could a Spanish subject.

A citizen of the United States domiciled in Cuba cannot maintain an action against the United States under the Act of March 3, 1887, in the Court of Claims for the value of property destroyed during and as the result of military operations in Cuba by order of the commanding officer in the field, as there is no obligation based on implied contract to compensate for the value of such property. If the order was not justified by the rules of war, it would amount to a tort, and the action based thereon would be one sounding in tort, and the action cannot be maintained.

Quaere, and not decided, whether the Act of March 3, 1887, c. 359, 24 Stat. 505, supersedes or modifies § 1066, Rev.Stat., and § 9 of the Act of March 3, 1863, c. 92, 12 Stat. 767, relating to claims against the United States growing out of, or dependent on, treaty stipulations.

42 Ct.Cl. 99 affirmed.

The facts are stated in the opinion. chanrobles.com-red

Page 212 U. S. 300