No. 454.
Mr. Foster
to Mr. Evarts.
Legation of
the United States,
Mexico, December 24, 1879.
(Received January 13, 1880.)
No. 1075.]
Sir: In my No. 966, of May 31 last, I referred to
the failure of the Mexican Congress to approve the contracts made by the
executive for railroads to connect with the American frontier; and with my
No. 1014, of August 16 last, I sent as inclosures extracts from the reports
of the congressional committee on the Sonora Railroad concession, showing
the grounds of the opposition in Congress to that enterprise.
I have to report that at the last session of Congress, which terminated on
the 15th instant, the same spirit of opposition to American railroad
connections was manifested by that body, and neither the Rio Grande nor the
Sonora projects were able to obtain a favorable consideration. An abstract
of the Sonora charter was transmitted to the Department with my No. 874, of
January 28 last.*
At the instance of the congressional committee and the executive, this
charter was materially modified and again submitted to Congress at the last
session; but even in its modified form its friends were not able to secure
for it a fair hearing, much less a vote upon its passage. The clause (see my
No. 874, inclosure 6, article 11) which made the company and all of its
employés Mexicans, and prohibited them from alleging their foreign
nationality in the amended charter, is sought to be made even more
prohibitory, and a paragraph is added as follows: “The foreign diplomatic
agents shall not be able to have any intervention in matters which relate to
the company.”
Another amendment which has been made in the proposed new charter
[Page 720]
is an embodiment of the decree of
February 1, 1856, prohibiting foreigners to acquire real estate within
twenty leagues of the American frontier, against which discrimination you
have heretofore instructed me to protest; and the company is limited in its
ownership of real estate “to the road itself and its absolutely necessary
dependencies, in the judgment of the department of public works, with whose
express permission in each case the acquisition of said real estate shall be
made.”
Even with these and other modifications made in the interest of Mexico, the
charter could not be brought to a free discussion or vote. In my No. 874 I
referred to the fact that the gentlemen seeking the charter, failing in
obtaining the approval of Congress, were seeking to revive through the
minister of public works an old charter granted to David Boyle Blair in
1875, which had lapsed. It is now understood that they will make use of the
transfer of said charter, which was made June 19, 1877, and which they have
hesitated to use, hoping for the confirmation of their new charter by
Congress. I inclose herewith a translation of the decree of transfer of the
Blair charter.
It will be seen that the power of the Executive to revive and transfer the
Blair charter is assumed to exist in the second clause of section 3 of
article 33 of said charter, which reads as follows: “In any of the cases
here specified, the company shall lose the concessions granted in this law,
of which the government will be able to dispose at its will.” For the better
understanding of the question, I inclose a translation of the entire article
referred to in the decree of transfer.
I understand that some of the best constitutional lawyers in Mexico have
given an opinion that the Executive has full power to make the transfer. On
the other hand, the opponents of the project contend that the clause quoted
was intended merely to take away from Blair or his assigns any claim to the
franchises, and to leave the Mexican Government free to confer them upon
other parties; that it was never designed to confer the power upon the
Executive alone to revive and transfer a forfeited charter, and that the
term “government” refers to the lawmaking power, the legislature and
executive departments combined.
The grantees have obtained from the minister of public works authority to
proceed with their surveys and with the construction of the road from
Guaymas to the American frontier, under the Blair charter, only reserving to
the government the right to substitute for it the contract of charter now
pending in Congress, if that body shall approve the same within one year. I
inclose a translation of the agreement, made by the minister on the 12th
instant, conferring this authority.
As it is expected that the enterprise will be undertaken by an American
corporation, the Atchison, Topeka and Santa Fé Railroad Company, I have
thought it proper to communicate the foregoing facts, with translations of
the official papers, to the Department for its information,
I am, &c.,
[Inclosure 1 in
1075.—Translation.]
Transfer of the Blair charter.
department of public works,
colonizaton, industry, and commerce of the mexican republic,
section 3.
The President has been pleased to address me the following decree:
“Porfirio Diaz, Constitutional President of
the United Mexican States, to the inhabtants thereof. Be it
known:
“That in exercise of the faculty conceded to the Executive in
paragraph 2, fraction
[Page 721]
III, article 33, of the law of June 17, 1875, I have thought
proper to decree the following:
“Sole Article. The concession granted
June 17, 1875, for the construction of a railroad, with its
corresponding telegraph, in the State of Sonora, which
concession was declared expired on the 12th instant, is
transferred to Messrs. Sehastian Camacho (in representation of
Mr. Robert R. Symon) and David Ferguson.
“In consequence, I order it to be printed, published, circulated,
and duly complied with.
“Given in the National Palace of Mexico, June 19, 1877.
“PORFIRIO DIAZ.
“To Vicente Riva Palacio,
“Minister of Public Works, Colonization,
Industry, and Commerce.”
And I communicate it to you for the necessary ends.
Liberty in the constitution.
Mexico, June 19,
1877.
RIVA PALACIO.
[Inclosure 2 in
1075.—Translation.]
Article 33 of the Blair
charter.
Art. 33. The concessions made in this law will
cease to have effect on account of any of the following causes:
- 1st.
- For failing to comply with any of the obligations specified in
the clauses of article 32.
- 2d.
- For not constructing the first 50 kilometers, the sections of
200 kilometers each two years, and for not concluding the
principal line from Guaymas to the frontier of the north, within
the periods fixed in articles 4 and 5.
- 3d.
- For disposing of or transferring this concession or the rights
derived from it to a foreign government or state, or for
admitting one or the other as a partner in the company. In any of the cases here specified the company
shall lose the concessions granted in this law, of which the
government will be able to dispose at its will; but the
said company will retain the right to the houses it may have
constructed, the part of railway and telegraph it may have
established, the materials, engines, and tools employed in the
construction, and the public lands corresponding to the number
of kilometers of railway it may have constructed.
[Inclosure 3 in
1075.—Translation.]
Agreement of minister of public works.
(Seal.)
Mexican Republic, Department of Public
Works, Colonization, Industry, and Commerce, Mexico, Section 3,
No. 1550.
I have reported to the President of the Republic your communication in
which you manifest that in accord with the desires of the federal
executive and of the respective committee of the Chamber of Deputies of
the Congress of the Union, you agree to the definitive amendments to be
made in the concession of the Sonora “Railway, dated June 16, 1875,
adjusting to them the new contract which is pending approval of Congress
in the present session; and it being neither just nor convenient to the
public interests nor to those of the Sonora Railway Company for the work
for which everything is prepared, to be delayed for a longer time, and
being entirely conformable to the-amendments made in the original
concession which was transferred to you by decree of June 19, 1877, to
which amendments you have agreed and they will form a part of the
contract with the government, and which you will accept as a law, when
approved by Congress, without invoking per contra
the stipulations in the original concession which may be opposed to
them, as you declare that they have been dictated with your approval by
this department and with the concurrence of the said second committee of
industry of the chamber of deputies, with the understanding that
Congress shall give its approbation, you solicit:
That the said amendments be signed in duplicate, you retaining one
copy;
[Page 722]
That orders he issued to the engineer appointed by this department to
present himself in the shortest possible time in Guaymas;
That the instructions communicated to the federal authorities and private
individuals of Sonora to assist the company in the manner expressed by
the concession upon the commencement of work, be repeated; and,
lastly,
That the necessary orders be issued that the custom-house of Guaymas may
permit the introduction free of duties of the material and effects
destined for the Sonora Railway, in compliance with the relative
articles of the law of the concession.
In reply, and by express direction of the supreme magistrate, I have to
state to you that the petition in question being taken into
consideration, the chief of the executive power has been pleased to
accede to the said petition, signing in consequence apart of the
amendments adjusted and issuing the orders asked, with the understanding
that the company will await the approval of the said amendments, at
least until the 15th of December of the next year, it being required to
state in reply its agreement to this term.
Liberty in the constitution.
Mexico, December 12,
1879.
M. FERNANDEZ,
Chief
Clerk.
To Messrs. David Ferguson and Robert R.
Symon,
Grantees of the Sonora
Railway, Present.
