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In the following years, upon the sug-, of the curriculum at Lahainaluna, as progestion by the mission of certain instructors, vided in the agreement, on or about Sepa correspondence arose between the board of tember 1, 1903, at which date the religious education and the mission, in which the tenets and doctrines, in accordance with board of education said that it was under-' the creed and articles of faith of the misstood that the institution was to be con- sion, ceased to be taught, and are no longer tinued so as to aid instead of to defeat the taught. The "cultivation of sound literpurpose for which it had been founded, and ature and solid science” has also ceased, and that nothing had been done to justify the the institution has become a technical school

a intimation that the board had any desire under the name of “The Lahainaluna Agrito defeat such purpose, and admitted “that cultural School.” a full compliance with agreement consists The territory maintains no other instituin appointing persons teaching in the doc- tion of like character and on similar printrine and after the manner of the Congre- ciples in any other place on the island. gational and Presbyterian churches of the The appellants are the successors of the United States." . And further: "The board | American Board of Commissioners for Forare fully aware that if they do not see fit eign Missions. to carry on the institution according to the Upon these facts, it is alleged, that apterms of the contract, they have to reconvey pellants have become entitled to a return it, or pay the sum of $15,000.”

of the property conveyed or to the payment After 1865 the seminary continued to be of $15,000; that the territory has refused to conducted on the same lines as prior there do either, but has elected to retain the propto.

erty, which election is evidenced by its reIn 1894, in the Constitution of the Repub- fusal to pay the said sum, and the further lic of Hawaii, it was provided that “. fact that it is proceeding to erect expensive No public money shall be appropriated buildings thereon and expend large sums of

for the support of (or?) benefit of money in fitting the property and the school any sectarian, denominational, or private to become a technical school,-namely, an school.” This provision is continued and re- agricultural college. mains in full force as a part of g 55 of the The petition was demurred to upon the organic act.

grounds substantially as follows: Religious instruction ceased to be a part 1. That the court had no jurisdiction of benefit, and behoof, to have and to hold the on the fulfilment of the conditions, and should same forever.

the said transfer not meet the approbation Providing, however, and this transfer is of the prudential committee, the mission, made upon the express condition, that the on its part, pledges itself to refund to the said Hawaiian government agrees that the said government any necessary expenses it said institution shall be continued at its ex- may have incurred in carrying on the instipense, as an institution for the cultivation tution whilst the parties were awaiting the of sound literature and solid science; and, ratification or rejection of this transfer by further, that it shall not teach or allow to the said prudential committee. Provided, be taught any religious tenet or doctrine however, that moneys shall not have been contrary to those heretofore inculcated by expended in enlargement or improvements, the mission, wh.ch we represent, a sum other than what may have been actually mary of which will be found in the confes necessary to keep the buildings in repair and sion of faith herewith inclosed, and in that carry on the institution. in case of the nonfulfilment or violation of In case of disagreement of the parties as the conditions upon which this transfer is to the amount proper to be refunded, in case made by the said government, the whole of the nonratification of this conveyance property hereby transferred, hereinbefore by the prudential committee, the sum shall specified, together with any additions or im- be determined by two arbitrators, one of provements which may have been made up which shall be chosen by each of the reon the premises, and all the right and priv. spective parties, and which arbitrators, in ileges hereby conveyed or transferred to case of disagreement, shall elect a third to the Hawaiian government by the said island decide upon the award. mission, shall revert to the said mission, to

The foregoing remarks and proposals are have and to hold the same for and in behalf of the American Board of Commissioners of respectfully submitted for the consideration

of his Majesty's government, and I feel Foreign Missions. These proposals, if accepted, by the Ha- greatly obliged by an early answer.

We have the honor to be, waiian government, shall not have binding force until they shall have received the

Very respectfully, your ex. friends and sanction of the prudential committee of the most obedient servants, American Board Commissioners of Foreign

W. P. Alexander, Missions in Boston; and further, should the

C. B. Andrews, said Hawaiian government accept the pro

S. N. Castle, Com., posals here presented, and enter forthwith up

By S. N. Castle, 27 S. C.-40.

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the subject-matter of the claim. 2. That the and that practice there cannot be a shade United States was a necessary party, the of doubt as to the intention of the parties. property described in the petition having It is insisted, however, by the appellee, that been transferred and ceded to the United the agreement is clear and unambiguous, States by the treaty of annexation of July and that it does not present a case for the 7, 1898. 3. That the petition did not set resort to extrinsic evidence. We cannot conout facts sufficient to constitute a cause of cur with this view. There is quite a range action in that, (a) it did not appear that of meaning in the words "sound literature the agreement set forth in the petition was and solid science.” To interpret or specialize ratified by the legislature; (b) that the them and make definite application of them right of action accrued more than two years would certainly receive aid from the pracprior to the commencement of the action; | tice of the parties. It is contended by ap(c) it did not appear that there had been a pellants that there was a close connection breach of the conditions of the agreement; between them and the "definite system of (d) or, if so, that it occurred in compliance doctrine” which was the “central purpose with law and statutes which rendered the of the mission." We, however, need not fulfilment of the conditions impossible. 4. dwell further upon this contention, though That the petition was indefinite and uncer- a plausible argument has been advanced to tain, in that the allegations as to breach sustain it, and we pass to the next controof conditions pleaded were conclusions of verted contention. The words of the agreelaw, it nowhere appearing in the petition ment are that the government “shall not in what respect the conditions had been teach or allow to be taught any religious broken. The supreme court overruled the tenet or doctrine contrary to those herefirst, second, and fourth grounds, and di- tofore inculcated by the mission, a sumvisions a and b of the third ground of de- mary of which will be found in the conmurrer.

fession of faith herewith inclosed

Were these words all there was of proMessrs. David L. Withington, William R. hibition and purpose as to religion? May Castle, W. 0. Smith, A. Lewis, Jr., and C. we believe that it became suddenly the H. Olson for appellants.

purpose to change an institution which had Messrs. Lorrin Andrews, E. C. Peters, and had its impulse and foundation in religious M. F. Prosser for appellee.

zeal to convert the Hawaiians to Christian

ity and to educate young men to be “teachMr. Justice McKenna delivered the opin- ers of religion,” to one simply literary and ion of the court:

scientific and nonsectarian? Had the beThe contentions of the parties are sharp | lief of the mission in its form of Christian ly in opposition as to the agreement, and faith become so indifferent that it would the necessity and competency of extrinsic transfer a seminary instituted for the propevidence to explain it. Appellee contends agation of that faith with no other conthat we are confined to the letter of the dition than that contrary tenets should not agreement, and, so confined, its conditions be taught? There is not a syllable in this have been fulfilled. In other words, that record

In other words, that record to justify such assumptions. It "sound literature and solid science" are must be remembered that we are considerstill cultivated, and that no religious tenet ing a transaction which occurred in the Haor doctrine contrary to those heretofore in waiian Islands in 1849, and by the condiculcated by the mission is taught. 'Or, to tions of that time were the acts of the express the contention in language other parties induced. Besides, the agreement is than that of the agreement, that a school not in a formally executed paper. It is devoted to one subject of secular science, found in a correspondence, and is constiand which excludes all religious teaching, tuted and explained by the whole of the corwas contemplated by or is permitted by the respondence. And, taking the whole of it, agreement. Opposing these views, appel- there is very little aid from extrinsic evilants contend that a mere technical school | dence needed to demonstrate its meaning does not fulfil the agreement; that the terms and purpose. of the agreement require the "inculcation of The mission reminds the Minister of Pubgeneral learning and knowledge,” accom-lic Instruction that the seminary was espanied with religious instruction in accord- tablished in 1831, “to promote the diffusion ance with the confession of faith submitted of enlightened literature and Christianity to the Hawaiian government. And it is in throughout the islands," and that it had sisted that, if there is anything doubtful in been unceasingly watched over, cherished, the agreement, it may be interpreted by the and cared for by the mission, and that circumstances which preceded it and the im- $77,000 had been expended for its benefit. mediate and long-continued practice under It was stated that, in consequence of debts it. If we may resort to those circumstances 'incurred "in the prosecution of its labors of

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benevolence and mercy,

mercy," the

the American Washington, A. & G. Steam Packet Co. 13 Board of Commissioners of Foreign Missions Pet. 89, 10 L. ed. 72, a contract expressed was compelled to diminish its grants to in a correspondence between the parties for each of the missions under its care, in the hire of a steamboat, an exception was cluding the Hawaiian mission, and that the ingrafted which was not expressed, upon latter, for that reason, would be "unable evidence that the owner of the boat knew to carry forward its operations with the the service for which it was intended, and vigor to be desired in all of its depart. that when navigation was obstructed by ice ments of labor.” In view of these facts, another mode of transportation was resortit was stated and believed that, under the ed to. The court said, as to extrinsic evicircumstances, the tranfser of the institu- dence, it was applied in some cases “to tion “to the fostering care and patronage ascertain the identity of the subject; in of the government” would "promote the others its extent. In some, to ascertain highest interest of the Hawaiian people." the meaning of a term, where it had acAn offer was then made to transfer the quired by use a particular meaning; in seminary with the conditions which we have others, to ascertain in what sense it was referred to. A confession of faith was in used where it admitted of several meanings. closed. The government modified the pro. But in all the purpose was the same. To posal by reserving the right to pay $15,000 ascertain by this medium of proof the inas an alternative to the reversion of the tention of the parties, where, without property to the mission if the govern- the aid of such evidence, that could ment should not fulfil the conditions of the not be done, so as to give a just ingrant. The modification was accepted, and, terpretation to the contract.” And it was in a subsequent communication, a new con expressed “as the just result” of the cases, fession of faith was substituted for that “that, in giving effect to a written contract originally proposed. The following are the by applying it to its proper subject-matter, reasons which were given:

extrinsic evidence may be admitted to prove “The reasons for requesting the substi- the circumstances under which it was made, tution are, that the previously presented whenever, without the aid of such evidence, confession, although according in all its such application could not be made in the specified doctrines with our belief and with particular case.” In Brooklyn L. Ins. Co. that also of the churches by whom that in- v. Dutcher, 95 U. S. 269, 24 L. ed. 410, it stitution has been founded and sustained, is was said: “There is no surer way to find yet not so distinctive as to present a barrier out what parties meant than to see what to the introduction there of other deleteri. they have done.” So obvious and potent ous doctrine not specified in said confession. a principle hardly needs the repetition it has It will admit, also, of teachings of this received. And equally obvious and potent mission and of the churches sustaining it, is a resort to the circumstances and condisuch as we feel to be entirely subversive tions which preceded a contract. Necessaof evangelical Christianity. Not doubtingrily in such circumstances and conditions but that these reasons will commend them will be found the inducement to the contract selves to the members of his Majesty's gov- and a test of its purpose. The conventions ernment, we beg leave to express, in present of parties may change such circumstances ing them, the high consideration with which and conditions, or continue them, but it we remain.”

cannot be separated from them. And this The correspondence concerned the trans- makes the value of contemporaneous confer of a school established in 1835, the destruction. It is valuable to explain a statsign of which was to perpetuate the Chris-ute where disinterested judgment is alone tian religion, and with an object described invoked and exercised. It is of greater to be "still more definite and of equal or value to explain a contract where self-ingreater importance,”—that is, “to educate terest is quick to discern the extent of young men to be Christian ministers.” A rights or obligations, and never yield more religious instruction was prescribed. All than the written or spoken word requires. this the government was informed of when See, for further illustration, the following: the proposition was made to transfer the Reed v. Merchants’ Mut. Ins. Co. 95 U. S. school to its “fostering care and patronage.” 23, 24 L. ed. 348; District of Columbia v. And the government accepted the grant, ac-Gallaher, 124 U. S. 505, 31 L. ed. 526, 8 Sup. cepted as it was tendered, and necessarily Ct. Rep. 585; Topliff v. Topliff, 122 U. S. for the purpose it was tendered.

121, 30 L. ed. 1110, 7 Sup. Ct. Rep. 1057; Even if we stopped here, conviction of Paige v. Banks, 13 Wall. 608, 20 L. ed. 709; the justness of that conclusion is almost Philadelphia, W. & B. R. Co. v. Trimble, 10 indisputable. It becomes indisputable if ex- Wall. 367, 19 L. ed. 948; Chicago v. Sheldon, trinsic evidence be considered, and we have 9 Wall. 50, 19 L. ed. 594; Cavazos v. Tre. no doubt that it may be. In Bradley v.' vino, 6 Wall. 773, 18 L. ed. 813; Simpson

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v. United States, 199 U. S. 397, 399, 50 | itself from its engagement. The provision L. ed. 245, 246, 26 Sup. Ct. Rep. 54; Chicago for the teaching of "sound literature and Great Western R. Co. v. Northern P. R. solid science” might be considered of "exCo. 42 C. C. A. 25, 101 Fed. 792. And many pansive character,” to use the description state cases could be cited.

of Lieber, and change with the progress of The design of studies for the school we both. The provision for religious teaching have detailed. The government recognized is unchanging. It is as definite and absolute and continued both without question or to-day as it was when it was written. The change in any way. The seminary build- alternative of it the agreement has made ings were burned down in 1862. The gov- the return of the property conveyed, or the ernment rebuilt them and continued the payment of $15,000. school. The petition alleges that the prin- Judgment reversed and case remanded, cipal of the school, in 1862–63, in his with directions to proceed in conformity report, said: “The Hawaiian government with this opinion. has always been a liberal friend and benefactor. ... Never, in any way, have Mr. Justice Brewer took no part in the they interfered with our manner of instruc- decision of this case. tion or in the course of instruction pursued. In our work we have had all the freedom which we possibly could have had under the A. B. C. F. M.” Also, referring to pupils HENRY E. FRANKENBERG COMPANY,

Petitioner, who, under the religious instruction at the school, became ministers, he says: "While six who were connected with it since it has

UNITED STATES. been under the care of the Hawaiian gov- .

Duties-on metal beads. ernment have been ordained to the same

Metal beads temporarily strung on office."

cotton cords or strings for the purpose of In 1864 new interests appeared and a facilitating transportation are not dutiable change in the purpose of the school com- under the tariff act of July 24, 1897 (30 menced to be urged. It was met by an Stat. at L. 167, 189, chap. 11, U. S. Comp. adverse opinion of the Attorney General, Stat. 1901, pp. 1645, 1673), par. 408, at 35 who pointed out the conditions of the trans- per cent ad valorem as loose beads, but are fer, and the condition of their nonfulfilment subject to the 45 per cent ad valorem duty to be the restoration of the property to the prescribed by par. 193 for articles or wares A. B. C. F. M. And, again, in 1865, the not specially provided for in the act, comboard of education, while denying the right posed wholly or in part of metal, whether

| or of the mission to nominate instructors, conceded the obligation to continue the institu

[No. 257.) tion, "so as to aid, instead of defeating, the purpose for which it was founded,” and the Argued April 12, 1907. Decided May 13, alternative to be the surrender of the prop

1907. erty or the payment of $15,000. "Religious instruction, it is alleged, “upon the lines Ottes Circuit Court of Appeals for the

N WRIT of formerly pursued by the mission and subsequently by the government, in accordance Second Circuit to review. a judgment which with the agreement, was continued up to affirmed a judgment of the Circuit Court or about September 1, 1903." We hence for the Southern District of New York, see that not only the immediate prac- which had, in turn, affirmed the decision tice of the government construed the of the Board of General Appraisers, sustainagreement as contended for by appellants, ing the collector in assessing a 45 per cent but the practice of over fifty years pro- ad valorem duty on metal beads temporarily claimed the same meaning,-proclaimed it strung on cotton cords or strings for the without question and against a suggestion purpose of facilitating transportation. Afand agitation to reject it. It is somewhat firmed. staggering to be told that such continuity See same case below, 76 C. C. A. 514, 146 of practice is not a legal interpreter of Fed. 63. the meaning of the parties, and that the The facts are stated in the opinion. only criterion can be a precise and isolated Mr. Frederick W. Brooks for petitioner. form of words which, at the end of a half Assistant Attorney General Sanford for a century of contrary admission and declara- respondent. tion, one of the parties finds it convenient to bring forward.

Mr. Justice McKenna delivered the opinion It is no defense that the government's of the court: policy has changed. It cannot so release The question involved in this case is



whether certain importations of metal beads, that the terms threaded and strung beads are dutiable under paragraph 408 of the were familiar in the importing trade, and tariff act of July 24, 1897 [30 Stat. at L. that beads strung on "threads for tem167, 189, chap. 11, U. S. Comp. Stat. 1901, porary use were commercially known at pp. 1645, 1673], at 35 per cent ad valorem, that time as strung beads." And it was or at 45 per cent ad valorem under para- further testified that there was an increase graph 193.

in value over unstrung beads from 15 to 20 The collector assessed them at the latter per cent on account of the labor attached rate. The petitioner protested. Upon sub- to stringing. mission of the protest to the board of gen- Judgment affirmed. eral appraisers, that board sustained the collector. Its decision was successively af- Mr. Justice Moody took no part in the firmed by the circuit court and the circuit decision of this case. court of appeals. 76 C. C. A. 514, 146 Fed. 63.

The applicable paragraphs are respectively as follows: 408, "Beads of all kinds not

UNITED STATES, Appt., threaded or strung, thirty-five per centum ad valorem;" 193, "Articles or wares not

AMMEN FARENHOLT. specially provided for in this act, composed Navy-pay of passed assistant surgeon

wholly or in part of .. metal, and

mounted pay. whether partly or wholly manufactured,

A passed assistant surgeon in the forty-five per centum ad valorem.” There Navy, with the rank of lieutenant, is enis no dispute about the character of the titled to the pay of a captain in the Army, articles. They are metal beads, strung on mounted, in view of the respective provicotton cords or strings. They cannot, there- sions of U. S. Rev. Stat. § 1466, U. S. Comp. fore, be said to be beads "not threaded or Stat. 1901, p. 1029, assimilating 'in rank strung ,” which paragraph 408 makes duti- lieutenants in the Navy with captains in the able at 35 per cent, if the words of that 3, 1899 (30 Stat. 'at L. 1007, chap. 413, U.

Army, of the Navy personnel act of March paragraph be taken literally. But it is con- s. Comp. Stat. 1901, p. 1072), $ 13, entitling tended that the construction of that para-commissioned officers of the line of the graph is dependent upon the use to which Navy to the same pay and allowance as ofthe beads are put and the purpose on ac- ficers of corresponding rank in the Army, count of which they are strung. It is con

and of the act of June 7, 1900 (31 Stat. at tended, and the contention is supported by L. 697, chap: 859, U. S. Comp. Stat. 1901, the testimony, that the beads are used in p: 990), declaring that assistant surgeons

shall rank with assistant surgeons in the the manufacture of purses, for the embroidery of cushions and dresses; never for must have used the words “assistant sur

Army, who are mounted, since Congress personal adornment; and that they are geons” as descriptive of the whole class of strung or threaded in bunches for the pur-assistant surgeons, passed as well as those pose of facilitating transportation, and not passed. hence, in contemplation of the statute, loose beads. To this argument the circuit court

[No. 277.] of appeals of the seventh circuit yielded. United States v. Buettner, 66 C. C. A. 289, Argued April 25, 1907.

Argued April 25, 1907. Decided May 13, 133 Fed. 163. It did not prevail, however,

1907. with the circuit court of appeals of the second circuit in the case at bar nor in a

PPEAL from the Court of Claims to reprior case. Steiner v. United States, 24 C. C.

a A. 690, 26 U. S. App. 778, 79 Fed. 1003. Not- sistant surgeon in the Navy with the rank

, withstanding this conflict in the circuit of lieutenant the pay of a captain in the court of appeal, the case is in such narrow | Army, mounted. Affirmed. compass that an extended discussion is not See same case below, 41 Ct. Cl. 517. necessary. It may be that the stringing The facts are stated in the opinion. of the beads has but a temporary purpose.

Mr. John Q. Thompson and Assistant AtWe, however, are not at liberty to disre- torney General Van Orsdel for appellant. gard the condition upon which the law Messrs. George A. King and William B. makes the duty depend. Indeed, the con- King for appellee. siderations expressed by the board of appraisers make it certain that the lan Mr. Justice McKenna delivered the opinion guage of paragraph 408 was deliberately of the court: used to apply only to beads actually loose. The appellee filed a petition in the court This view is supported by the testimony as of claims to recover from the United States well. It was testified that prior to 1897 l the sum of $282.66 for the difference he

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