Concurring Opinion of
Mr. Associate Justice Sulzbacher.Mr. Associate Justice Hernández has announced the *235affirmative opinion of the Court. I concur in the result and conclusions. But I find additional reasons to agree with said opinion and I think it advisable to state them. For this purpose I shall briefly repeat the facts of the case.
This is an appeal taken by the Treasurer of Porto Rico, from the judgment rendered by the District Court of San Juan in the action brought by Luis Chevremont and others, against the Treasurer of Porto Rico, to recover certain sums of money paid by them, respectively, to the “Diputación Provincial”, for lottery tickets. The case was decided by the said District Court upon the basis of the facts as they appeared in the complaint and the answer thereto. These facts are substantially as follows: In the year 1876, the Government of Spain authorized the “Diputación Provincial” of Porto Rico to maintain a system of lottery, and this was established in the year 1877. Under the said ’system twenty five per cent of the receipts from the sale of lottery tickets accrued as profit or earning, to the said “Diputación Provincial”, while the remaining seventy five per cent was to be distributed among the holders of tickets that had drawn prizes; and the tickets were sold by the “Diputación Provincial” at two pesos and forty-two centavos each. A certain drawing was to have taken place on May 29,1898, but' owing to the war with the United States, a sufficient number of tickets could not be sold, and the drawing was postponed to July, 1898. The “Diputación Provincial”, being in need of funds, ordered another drawing for August loth, reducing the number of tickets from thirty thousand to ten thousand. Owing to the occupation of the Island by the American troops, neither of these two drawings took place, and the plaintiffs are holders, of tickets sold for the said drawings. By General Order No. 17 of November 19, 1898, the “Diputación Provincial” was dissolved and abolished and by General Order No. 84, of April 18, 1900, a Commission was appointed to receive, examine and decide all claims against the late “Diputación”. The plaintiffs in due time present*237ed their claims to the said Commission which refused to allow them. In conformity with the law, the claimants instituted in the District Court of San Juan a “litigative-administrative” action directed against the Administration or the Treasurer. The District Court of San Juan rendered judgment in favor of the plaintiffs and against the Treasurer of Porto Rico, from which decision the latter appeals to this Court. Neither of the parties has filed a brief in this Court, and only at the hearing have- they presented such oral arguments as were deemed conducive to the defense of their rights. The complaint and answer contain allegations and principles of law which the parties consider applicable in support of their claims. The parties agree that pursuant to paragraph 6, of General Orders No. 84, the District Court has jurisdiction of the case under the proceeding known as “Contencioso-Administrativo” (“Litiga-tive-Administrative”) proceeding. The plaintiffs base their right of action on articles 1091 and 1124 of the Civil Code, maintaining, as it appears, that the sale of tickets was a contract between the “Diputación Provincial” and the holders of lottery tickets, and contend that by virtue of said Section 6, of General Orders No. 84, the plaintiffs have a cause of action against the defendant, that is to say, the Treasurer. The defendant contends that the lottery is an institution prohibited by the laws at present in force; that the holder of a lottery ticket is a gambler who exposes his money to the hazards of fortune; that the laws of Spain do not afford any special remedy to the holder of a lottery ticket, in case the drawing could not take place; that the tickets were sold in the Island and in foreign countries at a higher price than had been paid by the first purchaser; that lottery tickets were articles of commerce, and after being issued by the “Diputación. Provincial” the latter had nothing further to do with them; that it was evident that the “Diputación Provincial” was not obliged to reimburse to the holder of lottery tickets the purchase money of said *239tickets, and this had never been contemplated; and that, even admitting that the “Diputación Provincial” was bound to return the purchase money of the tickets, if, through war or force majeiore, the drawings could not take place no responsibility, in any event, could attach to the Treasurer of Porto Rico. Thus we have before us three problems to solve: First. Was lottery legal in Porto Rico at the time the tickets were sold? Second. When the tickets had been legally acquired, what recourse had holders of tickets to make good their rights against the “Diputación Provincial”, in case the drawings were not held? And Third. If the “Diputación Provincial” was responsible to the ticket holders, does there exist any responsibility 'on the part of the Treasurer of Porto Rico? In the United States, for many years, lotteries have been considered detrimental to society, and since the year 1850, the Supreme Court of the United States gave expression to its opinions upon the subject in the following terms:
“ Many years ago this Court had occasion to say that the common forms of gambling are comparatively innocuous when placed in contrast with the wide-spread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community; it enters every dwelling; it reaches every class; it prays upon the hard earnings of the poor; it plunders the ignorant and simple”. Phalen v. Virginia, 49 U. S. Howard 163.
However, at about the same time the Spanish Government authorized the “Diputación Provincial” of Porto Rico to establish a system of lottery, the Constitution of Kentucky permitted games of lottery in that State. When, later, the Legislature passed a law prohibiting lottery the proprietors of the lottery applied to the Courts and the case was taken to the Court of Appeals of said State, and there we find the following declarations:
“ Although, therefore, the Legislature has the power to repeal the grant of a lottery privilege where no rights have accrued under it, and though lotteries have a demoralizing tendency and exercise a very pernicious influence over the ignorant and credulous part of the community, and for this reason *241have been almost universally denounced by. the lawmaking power in different States of the Union, yet if rights have been acquired or liabilities incurred upon the faith of the privilege conferred by the grant, it would be obviously unjust to permit such rights to be divested by a legislative revocation of the privilege. If, therefore, any vested rights have been acquired under the present grant before the passage of the repealing law, then, to the extent of such rights at least, the law must be regarded as unconstitutional and inoperative”.
These conclusions were sanctioned by the Supreme Court of the United States in the case of Douglass v. Kentucky, 168 United States, 499. Later on, when the same State, by its Constitution, prohibited lottery, the proprietor thereof alleged rights which he claimed to have acquired, and the same Court rendered an opinion against the plaintiff in the following terms:
“ Any one, therefore, who accepts a lottery charter does so with the implied understanding that the people, in their sovereign capacity and through their properly constituted agencies, may resume it at any time when the public good shall require, whether it be paid for or not. All that one can get by such a charter is a Suspension of certain governmental rights in his favor, subject to withdrawal at will. He has in legal effect nothing more than a license to enjoy the privilege on the terms named.for the specified time, unless it be sooner abrogated by the sovereign power of the State. It is a permit, good as against existing laws, but subject to future legislative and constitutional control or withdrawal”. Douglas v. Kentucky (et supra).
But with respect to rights acquired by a creditor against the proprietor of the lottery, we find in the same decision a very different doctrine, and as it emanates from the highest Court, the said doctrine must now be accepted as the law in force in the country.
“ All rights acquired on the faith of a lottery grant must be deemed to have been acquired subject to the power' of the State to the extent just indicated;.' nevertheless, rights acquired under such a grant consistently with the law as it was when they were so acquired, and which rights may be exercised and enjoyed without conducting a lottery forbidden by the State, are, of course, not affected, by the revocation of such grant”. Douglas v. Kentucky (et supra) State v. Mississippi, 191, United States.
We also read in the Encyclopedia of Law:
*243“Not very long ago lotteries were tolerated and made use of by the government of the States as a means of raising revenue for governmental, charitable and educational purposes”.
“ Of late, laws have been promulgated declaring the purchase and sale of lottery tickets to be illegal, prohibiting the use of the mail for lottery purposes, and treating lottery, at least as unfavorably as any other class of gambling contracts”.
“ In most of the States there are constitutional provisions prohibiting lotteries and sometimes the sale of lottery tickets also. In England, Canada, and all the States of the United States with one exception, lotteries are prohibited by statutes”.
But whenever lotteries were sanctioned in the various States, they were held to be legal transactions, so much so that in the State of Delaware the sale of lottery tickets, without licence, was a punishable offense.
Thus we see that in times past the people of the United States were as anxious to seek their fortune by means of this contrivance of risk and hazard as were those of the Eastern Continent, and lotteries were not restricted nor repressed until the Congress of the United States prohibited the forwarding of lottery tickets through the .mail, and declared that such forwarding constituted a crime.
There exists no law whereby the Government of Spain, prior to the Treaty of Peace entered into between the United States and the Kingdom of Spain, had adopted any measure to suppress the lottery in Porto Rico. We can, therefore, decide the first question in the affirmative, namely, that the lottery in Porto Rico was a legal transaction at the time the aforesaid lottery tickets were sold, and that they had the character of current lottery tickets, valid in the hands, of the holder. Our opinion in this respect is especially defined and affirmed by the statement of the Hon. Fiscal, representing the Treasurer of Porto Rico “that lottery tickets were articles of commerce”, which means that they were negotiable. A negotiable document, according to the laws of Spain and of the United States, implies that it was obtained for value received, and creates a res*245ponsibility on the part of the maker with respect to the holder. A plea rebutting the foregoing statement could have been presented at the trial. Court, but the record does not show that such a claim has in any manner been urged. The second question is: “When the tickets had been legally acquired what recourse had holders of tickets to assert their rights against the “Diputación Provincial ”, in case the drawings were not held f The plaintiff contends that by virtue of the purchase of lottery tickets, there existed a contract between the “Diputación Provincial” and the holder of the ticket, and this contract must have been that by reason of the payment of the value of the ticket, the “Diputación Provincial” agreed to effect a drawing, retaining twenty five per cent of the proceeds of the sale of tickets as a benefit or profit, and thus affording the holder of the ticket an opportunity to not only lose his money, but also to win a sum, more or less large, and even a capital. The transaction, therefore, should be considered as a legitimate -game for money, an aleatory contract or bet, and even as a gaming contract sanctioned by the supreme authority. The plaintiffs refer to articles 1091 and 1124 of the Civil Code, which are the following:'
“Art. 1091. — Obligations arising from contracts.have legal force between the contracting parties, and must be fulfilled in accordance with their stipulations”.
“Art. 1124. — The right to rescind the obligations is considered as implied in mutual ones, in case one of the obligated persons does not comply with what is incumbent upon him”.
“The person prejudiced may choose between exacting the fulfillment of the obligation or its rescission, with indemnity for damages and payment of interest in either case. He may also demand the rescission, even after having requested its fulfillment, should the latter appear impossible”.
“The Court shall order the rescission demanded, unless there are sufficient causes authorizing it to fix a period”.
We are always inclined to adduce the doctrines of American jurisprudence when applicable to judicial problems in the Courts of this Island, considering them as more progressive, and as an evolution of the old system. At the *247time when lotteries and gaming contracts were tolerated in the different States of the Union, which lotteries and contracts the Courts were bound to respect, judicial aid could be invoked for the purpose of compelling the parties to fulfill them. Under the common law which is the origin and source of the laws of the United States, gaming contracts were recognized, and we find in the Encyclopedia of Law, the following:
“Under the common law, parties to gaming contracts sanctioned by the law, could compel their fulfillment, as in the case of any other contracts”.
“Under the common law, gaming contracts, when fair and free from deceit, were considered by the Courts as valid without distinction”.
“Conflict of Laws. — It is usually held that if the lottery is legal in the state where the sale of tickets is made, such sale, or matters connected with the ownership of such tickets, will give rise to an action even in states where lotteries are prohibited, although the vendor knew that the tickets were to be used in violation of a positive law in another state. — Jameson v. Gregory, 4 Met. (Ky) 363. McNight v. Biesecker, 13 Pa. St. 328”.
“Bill in equity to compel managers of lottery to adjudge prizes to persons entitled thereto. — M’Gimpsey v. Booker, 5 Yerg. (Tenn) 139”.
A mistake in a lottery drawing is fatal, and equity will order that a redrawing be had. — Madison v. Vaughan, 5 Call. (Va.) 562”.
In one of the States of the Union where bets on horse-races were legal, the Supreme Court of that State declared:
“One party may sue another for failure to comply with all the stipulations of the contract; as where persons agree to run their horses and make their wagers, a suit would lie to make good the note deposited as a forfeiture in ease the race was not run.-Grump v. Secrest, 9 Texas, 260”.
' It would not be so if such contracts or agreements were prohibited by the laws because then the Courts of Justice could not be invoked, and the parties would remain in the situation in which they had placed themselves through their own fault. It is therefore, evident that even in the United States, in the absence of a law to the contrary, the party could have recovered his money by means of an action brought by reason of the rescission or non-fulfilment of a contract, or for money obtained and received. But we should *249first consider the case at issue in accordance with the laws in force in Porto Rico at the time the tickets were sold, or when the “Diputación Provincial” was abolished. The “ Diputación Provincial ” did not fulfill its contract; it did not carry out the drawings, and under the articles of the Civil Code, cited above, it was responsible for damages which plaintiffs could have demanded during the Spanish Government, in a Court of competent jurisdiction. The amount of damages and losses could not be other than the money paid for the tickets, with interest thereon. We now come to the third point: Is the Treasurer of Porto Rico in any manner responsible to the holders of lottery tickets f The Hon. Fiscal, on behalf of the Treasurer, denies that there exists any responsibility, but he has given no reasons for his denial, nor has he cited any law or principle of jurisprudence, while the plaintiffs claim a right under the said General Orders which by virtue of an Act of the Congress of the United States, approved April 12, 1900, became laws of Porto Rico by new enactment, and are now in full force and effect. Section 8 of the said Act of Congress, known as “The Fora-ker Act”, reads as follows :
“ Section 8. — That the laws and ordinances of Porto Rico now in force shall continue in full force and effect, except as altered, amended, or modified hereinafter, or as altered or modified by military orders and decrees in force when this Act shall take effect, and so far as the same are not inconsistent or in conflict with the statutory laws of the United States not locally inapplicable, or the provisions hereof, until altered, amended, or repealed by the legislative authority hereinafter provided for Porto Rico or by Act of Congress of the United States”.
We find that when the American Army occupied the Island, there existed in Porto Rico an institution known by the name of “Diputación Provincial”. The said institution was a corporation, an administrative entity, distinct from the general administration representing the Royal Government of Spain. We are informed by the aforementioned General Order No. 84, that the said corporation owned a number of buildings,' lands and personal property. *251It had its treasurer, it paid its expenses and it collected its revenues. It was independent of the General Government, in which respect it might be compared with a municipal government of the present day, or with a county in the United States which' is administered by its own officials, has its treasury, and makes its regulations, provided the same are not in conflict with the general laws of the country. This “Diputación Provincial”, this Corporation, was authorized by the Royal Government of Spain to maintain a system* of lottery. The Military Government, by virtue ot General Order No. 17, November 29, 1898, declared the “Diputación Provincial” to be discontinued and abolished, and distributed its property and funds among other officials and departments created by the said General Order. The Secretary of the Treasury took charge of its assets and liabilities, the collection of all its claims and the liquidation of all its debts. A Commission was created under the said General Order to ascertain the assets and liabilities of the “Diputación Provincial”, to receive all its property and to distribute the same among the different departments. The said General Order reads as follows :
“I. — The existence of the body known as the “Diputación Provincial” being considered as wholly unnecessary and incompatible with the present administration of public affairs, it is hereby discontinued and abolished. The responsibilities as well as the duties heretofore performed by the said “ Dipu-tación Provincial”, are distributed and assigned as follows”:
“II. — The Secretary of State (Secretario de Gobernación) will take charge of all matters appertaining to charitable institutions, public health, and of the examination of accounts which were formerly in charge of the “ Diputa-ción Provincial”.
“ III. — The Secretary of the Interior (Fomento ) will have charge of all matters relating to public works and education that were formerly in charge of the “Diputación Provincial”.
“IV. — The Secretary of Finance ( Hacienda ) will have charge of the now existing assets and liabilities of the “ Diputación Provincial ”, the collection of all its claims and the liquidation of all its debts”.
“ V. — A Commission is hereby created consisting of.whose duty it *253shall be to ascertain the assets and liabilities of the “Diputación Provincial”, to receive all its property and to distribute the same among the different departments of-the government as mentioned above. The Commission will meet at the call of the President”.
The distribution of the property of the late “ Diputación Provincial” did not seem to meet with any obstruction or obstacle, but, as was natural, vexatious questions and controversies came up in the settlement of its assets and liabilities. For this reason, it seems, the Military Government issued General Order No. 84, of April 18, 1900, additional to and complementary of, the previous one, which order was a moderate and wise measure to dispose of all incidental issues. The said Order, also created another Commission “to receive, hear and decide upon all claims against the late “Diputación Provincial’’. The said General Order contains a wise provision in the nature of a statute of limitation, excluding all claims not presented within six months. The said Commission was authorized to approve or disallow any claim presented, hut as it had no judicial character, its awards were not final, and when any claim was disallowed, it was transmitted to the District Court for adjudication under the proceedings called " contencioso-administrativo ” (litigative-administrative) proceedings.
Section III of General Order No. 84, reads as follows:
“III. — A Commission is hereby constituted to be composed of Messrs. Rafael Nieto Abeillé, J. H. Hollander and J. R. Garrison, to receive, hear and decide upon all claims against the said late “Diputación Provincial”, or arising out of contracts with that body, which may be presented to the said Commission within the period of six months from the date of this Order. All claims not presented within said time shall thereafter be forever barred”.
And Section VI of the same Order reads:
“VI.- — In case any award of the Commission shall be disapproved by the Governor, or where the decision of the Commission is not unanimous, or where the claimant declines to accept the award of the Commission, the certificate of the Commission, together with the claim and the evidence in support thereof, and all papers pertaining thereto will be transmitted by the Governor to the District Court of San Juan, with such statement as the Governor shall *255desire to submit in the premises; and thereupon the said Court at the request of either party shall proceed to consider and determine the claim under the proceeding now in force, called Contencioso-Administrativo;. and where the judgment is in favor of the claimant, an attested transcript thereof shall be transmitted to the Auditor, through the Governor, for settlement and payment by the Treasurer in the manner aforesaid”.
A majority of the Commission opposed the claims here controverted and pursuant to the methods and proceedings established by the said General Order, and the law in force in Porto Rico, the present case was taken to this Court.
To arrive at a just and reasonable decision of the litigation, we have cited several decisions of the highest Courts of the United States and the manner in which lottery cases, and even games of chance and the like have been viewed and adjudged. We have also endeavored to cite the conclusions of the Courts upon such contracts, and the times and places when and where the said incidents.and transactions were considered legal. We observe that the Courts, with great reluctance, decided in favor of the plaintiffs, but they are bound to apply the law as it is written: dura lex, sed lex. Courts can not legislate. These functions appertain to the legislatative branch of the Government for the purpose of repealing abominable statutes, which has been done in almost all the States of the Union.
In the cases mentioned, where the owners of lotteries were the plaintiffs, privileges and rights acquired were always respected, so long as the lottery system existed, but once repealed or prohibited,. rights acquired were not recognized in respect only to the owner of the lottery. But here lottery had not been repealed nor prohibited, but the owner thereof, the ‘‘Diputación Provincial”, this Corporation or Institution which was legally authorized by the Royal Government of Spain to conduct a game of lottery, was abolished. This suit, however, is not brought by the owner of the lottery, but by holders of lottery tickets. We find no jurisprudence as to a ticket holder against the *257owner of a lottery, but we do find precedents as to plaintiffs against the owner of the lottery, and also decisions delivered in the United States in gaming contracts, which I consider applicable to the present case. The Hon. Fiscal tells us, as a legal proposition, that lottery is a game of chance. I agree with him. But this class of game of chance was in the nature of an aleatory contract, sanctioned and authorized by the supreme authority. In the Courts of the United States a person, under such circumstances, could have recovered the money invested or paid in a gaming contract, even when, for some reason, the game could not take place, and as the lottery Avas legal under the larvs of Spain, a person could have asserted his rights in a proceeding for rescission or violation of a contract. By virtue of General Order No. 17, the different departments became the substitutes or, perhaps the .successors, of the “Diputación Provincial”. They received its property, real and personal, and the Treasurer was assigned the duties to “have charge of the assets and liabilities of the “Diputación Provincial”, the collection of all its claims and the liquidation of all its debts”. No provision of the. Treaty between the United States and the Kingdom of Spain would be violated in ratifying the judgment of the District Court. This is not a suit against the Government of the United States, but simply an action against a branch or department of the Insular Government, the Treasurer, in the manner authorized by said General Orders. Whether the claims of the plaintiffs in this suit should be considered of such a nature that the Military Government, based upon law and justice, could have placed an obstacle in the way of their successful prosecution, is a point Avhich Ave need not discuss, in view-of the fact that it Avas not done. On the contrary, pursuant to the said Military Orders, the plaintiffs were permitted and granted the same right and remedy against the Treasurer that they had or might have had, against the “Diputación Provincial”, had it not been abolished, and Ave *259have shown that such right and remedy did exist against the “Diputación Provincial”, for the money it had received in consequence of the promise to hold the drawings. The Government of the United States, by virtue of the Treaty, became owner of all the property and rights of the Government of Spain in Porto Rico, but acquired no title nor property in anything belonging to the “Diputación Provincial”. This fact is clearly shown by the provisions of the Military Orders appointing a Commission to receive and distribute the said property among the various insular departments created by the aforesaid Orders. This assertion is borne out by the further unequivocal and notorious circumstance, and of which this Court may and should take cognizance, that there exist, even now, claims of property and rights which the Insular Government demands against the National Government. The Supreme Court of the United States decided, in the case of Leitensdorfer v. Webb, 20 Howard, 176, as follows:
“The settled principle of the law of nations, that the inhabitants of a conquered territory change their allegiance, and their relation to their former sovereign is dissolved; but their relations to each other, and their rights of property not taken from them by the orders of the conqueror, remain undisturbed”.
The Government of the United States, that is the conqueror, did not take away this right of property, this cause of action, for the money due by the “Diputación Provincial” to the plaintiffs, but, on the contrary, the Military Government, the representative of the United States, was the one that left these claims to be decided upon by means of an investigation and award. It would have been a violation of the principle “of the law of nations as established by the highest authorities”, and applicable to the present case, were the plaintiffs deprived of their rights acquired against the “Diputación Provincial”, and now against the Treasurer who received the assets and had charge of the payment of all the debts. Taking into account the character of the *261“Diputación Provincial”, the present controversy is of the same nature as one which might occur between two citizens, and the rights, of these should not be impaired. The theory that the plaintiffs would have to follow the track of the the money paid by them in good faith for the lottery tickets, to the very vaults of the “Diputación Provincial”, is extremely extravagant. The facts alleged, which have not been contradicted, show that the “Diputación Provincial”, being in need of money, sold the tickets and applied the proceeds of the sale to meet its emergencies. But were it otherwise, the Court would be demanding an impossibility, something beyond the knowledge of the plaintiffs. The department of the defendant received and took possession of the assets and property of the late “Diputación Provincial”, from which alone could such information be obtained. The onus probandi rests with it. Hence that assertion should be forthwith ruled out. If the “Diputación Provincial” or the Treasurer, did not keep the lottery funds apart,- but mixed them with other funds, the laws of all civilized countries agree as to what should be the consequences thereof. In view of the facts set forth and the allegations of the parties, and of the law adduced, I am of opinion that the plaintiffs would have had a legal right against the “Diputación Provincial”, under the Spanish Government; and by virtue of the transfer, directed by the aforesaid General Orders, they have a just claim against the Treasurer of Porto Rico.