insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States if residing therein." [Italics supplied.]

Section 8 of the act of March 24, 1934, c. 84, 48 Stat. 456, 462, authorizing the people of the Philippine Islands to adopt a constitution and providing for their ultimate independence, also differentiates between citizens of the Philippine Islands and citizens of the United States:

"For the purposes of the Immigration Act of 1917, the Immigration Act of 1924 (except section 13 (c)), this section, and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens. For such purposes the Philippine Islands shall be considered as a separate country and shall have for each fiscal year a quota of fifty." [Italics supplied.]

The act of July 10, 1935, c. 376, 49 Stat. 478, specifically referring to section 8, authorized transportation at public expense for "any native Filipino residing in any State or the District of Columbia * * * who desires to return to the Philippine Islands," and provided: "No Filipino who receives the benefits of this act shall be entitled to return to the continental United States except as a quota immigrant under the provisions of section 8 (a) (1) of the Philippine Independence Act of March 24, 1934, during the period such section 8 (a) (1) is applicable."

The phrase "American citizens," and the succeeding reference to aliens "who have declared their intention to become [such] citizens," in the Emergency Relief Appropriation Act must, I think, be understood as contemplating United States citizenship-"American citizens" being used as synonymous with "citizens of the United States." The latter phrase, as pointed out above, has received a settled construction as excluding "citizens of the Philippine Islands."

For the foregoing reasons it is my opinion that natives of the Philippine Islands are not entitled to the preference provided by the Emergency Relief Appropriation Act of 1937, except, of course, such natives as may have acquired citizenship in the United States in the manner prescribed by law and such as fall within the express provision respecting war veterans.

Respectfully,

HOMER CUMMINGS.

STATUS OF TITLE TO TRACT OF LAND KNOWN AS DELAWARE BREAKWATER, DELAWARE, QUARANTINE STATION

A grant to the United States of an absolute estate in praesenti "upon the express condition" that a quarantine station be located and maintained on the land, without provision for reentry by the grantor, created an estate upon condition subsequent. Breach of the condition, without appropriate action by the grantor revesting title in it, did not ipso facto end the estate granted.

The SECRETARY OF THE TREASURY.

JULY 22, 1937.

MY DEAR MR. SECRETARY: Reference is made to your letter of June 16, 1937, in which you request my opinion as to the present status of the title to a tract of land near Cape Henlopen on Delaware Bay, known as the Delaware Breakwater, Delaware, Quarantine Station.

This tract of land was ceded to the United States by an act of the General Assembly of the State of Delaware, passed April 12, 1889, Delaware Laws, 1887-1889, ch. 449, p. 549, providing as follows:

“SECTION 1. That Hiram R. Burton, David L. Mustard and Franklin C. Maull, of Sussex County, be, and they are hereby appointed Commissioners on the part of the State of Delaware, and they, or a majority of them are hereby authorized and empowered in conjunction with any agent or person appointed by the President of the United States, or by the Secretary of the Treasury, to locate and fix the boundaries of any quantity of land belonging to the State

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of Delaware, not exceeding fifteen hundred feet front, and twelve hundred feet deep from low water mark, situate and lying on the Delaware Bay, between the United States Government Iron Pier, and the point of Cape Henlopen; and the land so located and designated by the aforesaid Commissioners, in conjunction with the agent or person appointed as aforesaid by the President of the United States or the Secretary of the Treasury, and all claim, title and right of soil and jurisdiction of the State of Delaware into or over the same, are hereby ceded to and vested in the United States in perpetuity; that a plot of the land so located and hereby ceded as aforesaid be made and recorded in the office of the Recorder of Deeds, in and for Sussex County; Provided, that the sovereignty and jurisdiction of this State shall extend over the land hereby ceded to the United States so far as that all civil and criminal process issued under any laws of this State may be executed in any part of said lands and the buildings, or structures thereon erected.

"SECTION 2. That the above cession of land and jurisdiction is made upon the express condition that a Quarantine State shall be located and maintained thereon by the United States."

Obviously, as the opinion of your General Counsel indicates, the words "Quarantine State" in section 2 are the result of a clerical error and should read "Quarantine Station."

It appears from your letter that pursuant to this statute, the Commissioners therein named, together with an agent for the United States, on the 28th and 29th of May, 1889, surveyed and located the lands, and that the Government thereafter established and for some years maintained a quarantine station thereon. It does not appear that any consideration was paid by the United States to the State for the land. You state that the tract no longer is used for a quarantine station or for any related purpose. You further state that your Department has no evidence supporting the title of the State of Delaware to the land ceded by the act, and that apparently the Attorney General never has

been requested to pass upon the title to it. No question is presented respecting what title the State of Delaware had in the land at the time it was ceded to the United States or respecting subsequent perfection of such title; and it is assumed, therefore, for the purposes of this opinion, that any title which the United States acquired or may now have is no better than such as the State of Delaware had at the time of the cession.

The words "all claim, title and right of soil and jurisdiction of the State of Delaware into or over the same, are hereby ceded to and vested in the United States in perpetuity," in the above act of the General Assembly of the State of Delaware, purport to grant to the United States an absolute estate in praesenti. Leavenworth, etc. R. R. Co. v. U. S., 92 U. S. 733, 741; Schulenberg v. Harriman, 21 Wall. 44, 60; 39 Op. A. G. 39.

Section 2 of the statute provides that the cession “is made upon the express condition that a Quarantine State (Station) shall be located and maintained thereon by the United States." The effect of this condition is to be determined under the common law of England, expressly adopted in Delaware, except as that law may have been modified by statutes or court decisions in that State. Clawson v. Primrose, 4 Del. Ch. 643, 652, 667.

The rule is well settled at common law that a conveyance such as that contemplated in the above Delaware statute created an estate upon condition subsequent; Clapp v. Wilder, 176 Mass. 332, 333; Papst v. Hamilton, 133 Cal. 631, 632; Littleton, sec. 328; and no Delaware statute or court decision inconsistent with the rule has been discovered. In Shockley v. Parvis, 4 Houston (Del.) 568, 569, in pointing out the distinction between a condition precedent and a condition subsequent, the court stated the familiar principle that "a subsequent condition operates upon an estate already created and vested and renders it liable to be defeated." No express provision for re-entry by the grantor is necessary. See Atlantic and Pacific Railroad v. Mingus, 165 U. S. 413, 428, and cases there cited.

Who may take advantage of breach of a condition subsequent is concisely stated in Schulenberg v. Harriman, supra, at page 63:

"And it is settled law that no one can take advantage of the non-performance of a condition subsequent annexed to an estate in fee, but the grantor or his heirs, or the successors of the grantor if the grant proceed from an artificial person; and if they do not see fit to assert their right to enforce a forfeiture on that ground, the title remains unimpaired in the grantee. The authorities on this point, with hardly an exception, are all one way from the Year Books down. And the same doctrine obtains where the grant upon condition proceeds from the government; no individual can assail the title it has conveyed on the ground that the grantee has failed to perform the conditions annexed." [Italics supplied.]

The breach does not ipso facto put an end to the estate granted. The estate continues until proper steps are taken by a proper party to enforce a forfeiture. Ruch v. Rock Island, 97 U. S. 693, 696; Atlantic and Pacific Railroad v. Mingus, supra, 430 et seq.; Lowrey v. Hawaii, 215 U. S. 554, 576; Proprietors of the Church in Brattle Square v. Moses Grant & others, 3 Gray (Mass.) 142; Gray, The Rule Against Perpetuities, 2nd ed. p. 6; 39 Op. A. G. 39. In the Massachusetts case cited, the court said:

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Upon a breach of the condition, the estate of the grantee or devisee was not ipso facto terminated, but the law permitted it to continue beyond the time when the contingency upon which it was given or granted happened, and until an entry or claim was made by the grantor or his heirs, or the heirs of the devisor, who alone had the right to take advantage of a breach. 2 Bl. Com. 156. 4 Kent Com. (6th ed.) 122, 127.” (p. 146.)

Where lands are ceded by public authority the mode of asserting forfeiture or of assuming the forfeited grant has been described by the Supreme Court of the United States in Atlantic and Pacific Railroad v. Mingus, supra, p. 431, as follows: