Page:United States Reports, Volume 209.djvu/73

 09 U.S. 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 slaugh- ter-house clean and wholesome; that any nuisance resulting from the discharge of offal from the slaughter-house into slaugh- ter-house creek had been abated prior to General Brooke's or- der, and that his order was not a vahd exercise of the police power. It must lqave been, therefore, an arbitrary confiscation, and the fact that his motives may have been subjectively meri- torious does not justify the trespass. Upon these facts the Dis- trict Court should have held--and upon the demurrer neees- sarily 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 herseft of such right of action by waiving th individual tort. United States v. Great Falls MIg. Co., 112 U.S. 645. This she is under no obligation to do. Mr. Assistant Attorney General Russdl 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 resu!t of war put an end to this office long before General Ludlow or General Brooke issued any order about it. That,a,?mination took place prior to or at the ratification of the treaty of peace. Upon the face of the laws and deer,,e found by the judg e as

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