out going into the Treasury of the United | Hamilton, having taken a permit and paid States. Considering that the original illegality of the duties complained of was established by the previous decisions of this court, and that the act of Congress of June 30, 1906, ratifying the collection of duties, was beyond the power of Congress to enact, the court below rendered judgment against the United States for the amount of duties paid. Ct. Cl. Applying the doctrine settled by this court in the cases to which we have referred, concerning the power to levy tariff duties under the authority of the President, on goods taken from the United States into Porto Rico and the Philippine Islands, or brought into the United States from either of such countries subsequent to the ratification of the treaty, and prior to the levy by Congress of tariff duties, it is obvious that the court below correctly held that such tariff exactions were illegal. It follows, therefore, that the only question open for consideration is whether the court below erred in refusing to give effect to the act of Congress of June 30, 1906, which ratified the collection of the duties levied under the order of the President. Dillin, surveyor of the port of Nashville, Tennessee, under the regulations, a sum of money for a permit to trade in cotton, sued to recover the same as having been illegally exacted. In deciding the case (p. 88, L. ed. p. 531) the court came to consider whether "the action of the Executive was authorized, or, if not originally authorized, was confirmed by Congress." Both these questions were determined in the affirmative. When the court came to consider the legislation relied upon as having confirmed the acts of the President in establishing the regulations in question, after stating the same the court declared: "We are also of opinion that the act of July 2, 1864 [13 Stat. at L. 375, chap. 225], recognized and confirmed the regulations in question." Mattingly v. District of Columbia, 97 U. S. 687, 24 L. ed. 1098, concerned the validity of an act of Congress in effect confirming the doings of the board of public works of the District of Columbia touching the improvement of streets and roads, and ratifying certain void assessments for street improvements. The court said (p. 690, L. ed. p. 1099): "We do not propose to inquire whether the charges of the bill are well founded. Such an inquiry can have no bearing upon the case as it now stands; for were it conceded that the board of public works had no authority to do the work that was done at the As the text of the act of Congress is unambiguous, and manifests, as explicitly as can be done, the purpose of Congress to ratify, the case comes to the simple question whether Congress possessed the power to ratify which it assumed to exercise. When the controversy is thus reduced to its ulti-time when it was done, and consequently mate issue we think the error committed by the court below, both in reason and authority, is readily demonstrable. no authority to make an assessment of a part of its costs upon the complainants' property, or to assess in the manner in That where an agent, without precedent which the assessment was made, the concesauthority, has exercised, in the name of a sion would not dispose of the case, or esprincipal, a power which the principal had tablish that the complainants have a right the capacity to bestow, the principal may to the equitable relief for which they pray. ratify and affirm the unauthorized act, and There has been congressional legislation thus retroactively give it validity when since 1872, the effect of which upon the asrights of third persons have not intervened, sessments is controlling. There were also is so elementary as to need but statement. acts of the legislative assembly of the DisThat the power of ratification as to matters trict, which very forcibly imply a confirmawithin their authority may be exercised by tion of the acts and assessments of the Congress, state governments, or municipal board of which the bill complains. If Concorporations, is also elementary. We shall gress or the legislative assembly had the not stop to review the whole subject, or cite power to commit to the board the duty of the numerous cases contained in the books making the improvements, and [the power] dealing with the matter, but content our- to prescribe that the assessments should be selves with referring to two cases as to the made in the manner in which they were power of Congress, which are apposite and made, it had power to ratify the acts illustrative. In Hamilton v. Dillin, 21 Wall. which it might have authorized. And 73, 22 L. ed. 528, the facts were as follows: the ratification, if made, was equivalent to During the Civil War the Secretary of the an original authority, according to the MaxTreasury, with the sanction of the Presi- im, Omnis ratihabitio retrotrahitur et mandent, adopted rules and regulations for dato priori æquiparatur. Under the Constigranting permits to trade between the bel-tution Congress had power to exercise exligerent lines. One of these rules exacted clusive legislation in all cases whatsoever the payment of a contribution, styled a fee, over the District, and this includes the powof 4 cents a pound on cotton purchased. 'er of taxation. Cohen v. Virginia, 6 Wheat. 264, 5 L. ed. 257. Congress may legislate within the District, respecting the people and property therein, as may the legislature of any state over any of its subordinate municipalities. It may therefore cure irregularities, and confirm proceedings which, without the confirmation, would be void, because unauthorized, provided such confirmation does not interfere with intervening rights." consideration that, although the duties were illegally exacted, the illegality was not the result of an inherent want of power in the United States to have authorized the imposition of the duties, but simply arose from the failure to delegate to the official the authority essential to give immediate validity to his conduct in enforcing the payment of the duties. And when these misconceptions are borne in mind it results that It is then evident, speaking generally, the unsoundness of the proposition relied both on principle and authority, that Con-upon is demonstrated by the application of gress had the power to pass the ratifying the elementary principle of ratification to act of June 30, 1906, and that that act bars the plaintiff's right to recover, unless, by the application of some exception, this case is taken out of the operation of the general rule. And this brings us to consider the several propositions relied upon at bar to establish that such is the case. First. Whilst it is admitted that Congress had the power to levy tariff duties on goods coming into the United States from the Philippine Islands or coming into such islands from the United States after the ratification of the treaty, it is yet urged that, as that body was without authority to delegate to the President the legislative power of prescribing a tariff of duties, it hence could not, by ratification, make valid the exercise by the President of a legislative authority which could not have been delegated to him in the first instance. But the premise upon which this proposition rests presupposes that Congress, in dealing with the Philippine Islands, may not, growing out of the relation of those islands to the United States, delegate legislative authority to such agencies as it may select, a proposition which is not now open for discussion. Dorr v. United States, 195 U. S. 138, 49 L. ed. 128, 24 Sup. Ct. Rep. 808. Second. As to the duties collected were illegal, it is insisted that, for the purpose of testing the validity of the act of Congress, the fact of such collection must be put out of view, and the act ratifying the exaction must be treated as if it were solely an original exercise by Congress of the taxing power. This being done, it is said, reduces the case to the inquiry, had Congress power, years after goods which were entitled to free entry had been brought into the Philippine Islands, to retroactively impose tariff duties upon the consummated act of bring ing the goods into that country? But the proposition begs the question for decision, by shutting out from view the potential fact that when the goods were brought into the Philippine Islands there was a tariff in existence under which duties were exacted in the name of the United States. Indeed, the contention goes further even than this, since it entirely disregards the important which we have previously referred. Moreover, the fallacy which the proposition involves becomes yet more obvious when it is observed that the contention cannot even be formulated without misstating the nature of the act of Congress; in other words, without treating that act as retrospective legislation enacting a tariff, when, on its very face, the act is but an exercise of the conceded power dependent upon the law of agency to ratify an act done on behalf of the United States, which the United States could have originally authorized. Third. It is urged that the ratifying statute cannot be given effect without violating the 5th Amendment to the Constitution, since to give efficacy to the act would deprive the claimants of their property without due process of law, or would appropriate the same for public use without just compensation. This rests upon these twocontentions: It is said that the money paid to discharge the illegally exacted dutiesafter payment, as before, "justly and equitably belonged" to the claimants, and that the title thereto continued in them as a vested right of property. It is consequently insisted that the right to recover the money could not be taken away without violating the 5th Amendment, as stated. But here, again, the argument disregards the fact that when the duties were illegally exacted in the name of the United States Congress possessed the power to have authorized their imposition in the mode in which they were enforced, and hence, from the very moment of collection, a right in Congress to ratify the transaction, if it saw fit to do so, was engendered. In other words, as a necessary result of the power to ratify, it followed that the right to recover the duties. in question was subject to the exercise by Congress of its undoubted power to ratify. To hold to the contrary would be to say that whilst the unauthorized act of an officer done on behalf of the United States. was subject to ratification by the United States, yet, if the officer acted without authority, the act, when performed, annihilated the power to ratify; that is, that the very condition which engendered the | son, 16 Serg. & R. 169, and 2 Pet. 380, T power destroyed it. But if it be conceded that the claim to a return of the moneys paid in discharge of the exacted duties was, in a sense, a vested right, it in principle, as we have already observed, would be but the character of right referred to by Kent in his Commentaries, where, in treating of the validity of statutes retroactively operating on certain classes of rights, it is said (vol. 2, pp. 415, 416): "The legal rights affected in those cases by the statutes were deemed to have been vested subject to the equity existing against them, and which the statutes recognized and enforced. Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121; Wilkinson v. Leland, 2 Pet. 627, 7 L. ed. 542; Langdon v. Strong, 2 Vt. 234; Watson v. Mercer, 8 Pet. 88, 8 L. ed. 876, 3 Story. Const. 267." L. ed. 458; Excelsior Mfg. Co. v. Keyser, 62 Miss. 155; Phenix Ins. Co. v. Pollard, 63 Miss. 641; McLane v. Bonn, 70 Iowa, 752, 30 N. W. 478; Johnson v. Richardson, 44 Ark. 365)." And the following cases, in various forms, illustrate the application of the principle: United States v. Morris, 10 Wheat. 246, 6 L. ed. 314; Grim v. Weissenberg School District, 57 Pa. 433, 438, 98 Am. Dec. 237; Chester v. Black, 132 Pa. 568, 6 L.R.A. 802, 19 Atl. 276; Price v. Huey, 22 Ind. 18; Welch v. Wadsworth, 30 Conn. 149, 158, 79 Am. Dec. 236; Rich v. Flanders, 39 N. H. 310, 311; Iowa R. Land Co. v. Soper, 39 Iowa, 112, 119; Ferry v. Campbell, 110 Iowa, 290, 50 L.R.A. 92, 81 N. W. 604; Mills v. Geer, 111 Ga. 275, 279, 287, 288, 52 L.R.A. 934, 36 S. E. 673. Fourth. Aside, however, from principle and the general result of the adjudged cases, it is finally insisted that the want of power Nor does the mere fact that, at the time the ratifying statute was enacted, this ac-in Congress to ratify the collection of the tion was pending for the recovery of the sums paid, cause the statute to be repugnant to the Constitution. The mere commencement of the suit did not change the nature of the right. Hence again, if it be conceded that the capacity to prosecute the pending suit to judgment was, in a sense, a vested right, certainly also the power of the United States to ratify was, to say the least, a right of as high a character. To arrogate to themselves the authority to devest the right of the United States to ratify is, then, in reason, the assumption upon which the asserted right of the claimants to recover must rest. Considering how far the bringing of actions would operate to deprive government of the power to enact curative statutes which, if the actions had not been brought, would have been unquestionably valid, Cooley, in his Constitutional Limitations, says (7th ed. p. 543): "Nor is it important, in any of the cases to which we have referred, that the legislative act which cures the irregularity, defect, or want of original authority, was passed after suit brought, in which such irregularity or defect became matter of importance. The bringing of suit vests in a party no right to a particular decision (Bacon v. Callender, 6 Mass. 303; Butler v. Palmer, 1 Hill, 324; Cowgill v. Long, 15 Ill. 202; Miller v. Graham, 17 Ohio St. 1; State v. Squires, 26 Iowa, 340; Patterson v. Philbrook, 9 Mass. 151); and his case must be determined on the law as it stands, not when the suit was brought, but when the judgment is rendered (Watson v. Mercer, 8 Pet. SS, 8 L. ed. 876; Mather v. Chapman, 6 Conn. 54; People ex rel. Bristol v. Ingham County, 20 Mich. 95; Satterlee v. Matthew duties in question under the circumstances here disclosed conclusively results from the decision in De Lima v. Bidwell, 182 U. S. 1, 45 L. ed, 1041, 21 Sup. Ct. Rep. 743. As we have seen, that case concerned the validity of collections of duties in the port of New York on goods brought into the United States from Porto Rico, and, whilst insisting on the legality of the duties, the government, at the same time, urged that, even if originally invalid, they had yet been ratified as the result of provisions of a specified act of Congress which had been passed after the suit to recover the duties had been commenced. As that portion of the duties sued for which had been collected after ratification of the treaty were decided to be illegal, it followed that a decision as to the question of ratification was required. In passing upon the subject, after intimating doubt as to whether the act relied upon, as manifesting the intention of Congress to ratify, was intended to have that effect, it was remarked (p. 199, L. ed. p. 1057, Sup. Ct. Rep. p. 754): "It can clearly have no retroactive effect as to moneys theretofore paid under protest, for which an action to recover back had already been brought. As the action in this case was brought March 13, 1900, eleven days before the act was passed, the right to recover the money sued for could not be taken away by a subsequent act of Congress. Plaintiffs sue in assumpsit for money which the collector has in his hands, justly and equitably belonging to them. To say that Congress could, by a subsequent act, deprive them of the right to prosecute this action, would be beyond its power. In any event, it should not be interpreted so as to make it retroactive. Kennett's Peti tion, 24 N. H. 139; Alter's Appeal, 67 Pa., which had been levied and collected other 341, 5 Am. Rep. 433; Norman v. Heist, 5 Watts & S. 171, 40 Am. Dec. 493; Donovan v. Pitcher, 53 Ala. 411, 25 Am. Dec. 634; Palairet's Appeal, 67 Pa. 479, 5 Am. Rep. 450; State use of Methodist Episcopal Church v. Warren, 28 Md. 338." Now, considering the language just quoted in connection with the doubt expressed as to the import of the alleged ratifying statute, it results that the reasoning employed stated two considerations: First, the want of power in Congress to ratify after suit brought; and second, the duty of construing the statute relied upon so as not to produce ratification, in view of its ambiguity. As the question of construction was last stated and that question was declared to be "in any event" decisive, we think the observations made concerning the want of power to ratify after suit brought must be regarded as not having been necessary to the decision rendered, and therefore must be treated as obiter. And this interpretation was, we think, applied in the cases of Lincoln v. United States and Warner, B. & Co. v. United States, 197 U. S. 419, 49 L. ed. 816, 25 Sup. Ct. Rep. 455. In those cases, as we have said, one of the defenses insisted upon by the government was a ratification alleged to have been operated by the act of Congress of July 1, 1902, which was passed after the bringing of the actions to recover. It is patent on the face of the opinion announced on the original hearing that the decision was exclusively based upon the ground that the act of Congress was so ambiguous concerning the ratification relied upon that it should not be implied that such ratification was contemplated. And it is to be observed that De Lima v. Bidwell was not overlooked, since that case was referred to in the course of the opinion. On the rerehearing the case was argued on questions submitted by the court, viz., whether the act relied upon manifested the purpose to ratify, and, if it did, whether Congress had power so to do. In the opinion on the rehearing, while the court reiterated the view previously expressed, that the act could not be treated as ratifying the collection of the duties sought to be recovered, because of its ambiguity in that regard, yet it expressly recognized the power in Congress to ratify, and in effect declared that, as to those things to which the alleged ratifying act clearly applied, ratification had resulted. This is so, since in the course of the opinion, in answering the argument that the alleged ratifying statute would be meaningless unless it was held applicable to the particular duties in controversy, it was pointed out (202 U. S. p. 499, 50 L. ed. p. 1119, 26 Sup. Ct. Rep. p. 730) that there were duties | than those in controversy, to which the act clearly applied, and "that question [as to them] was put at rest by this ratification.” Further, in calling attention to the ambiguity in the ratifying statute relied upon and the resulting doubt whether it embraced all duties, it was pointed out that the fact that actions were pending at the time of the passage of the ratifying act lent cogency to the view that, if Congress had intended by the ratification to affect them, it would have explicitly so declared. On this subject the court said (p. 498, L. ed. p. 1119, Sup. Ct. Rep. p. 730): "This construction is favored by the consideration that the suits had been begun when the act of July 1, 1902, was passed, and that, even if Congress could deprive plaintiffs of their vested rights in process of being asserted (Hamilton v. Dillin, 21 Wall. 73, 22 L. ed. 528), still it is not to be presumed to do so on language which, literally taken, has a narrower sense." Certainly, this language, particularly in view of the reference made to Hamilton v. Dillin, is wholly incompatible with the conception that the observation as to pending actions made in De Lima v. Bidwell was to be taken as having settled the proposition. that a power to ratify which otherwise obtained could not be exerted after suit brought. Be this as it may, however, as, after deliberate consideration, we are of opinion that the mere bringing of this action did not deprive Congress of its power to ratify the collections made by its officers, in the name of the United States, of the moneys sought to be recovered in this action, we may not allow the remarks made in De Lima v. Bidwell, under the circumstances stated, to control our judgment. There was much discussion at bar concerning whether the payments of the duties were voluntary. As it would seem that the circumstances surrounding these payments were substantially like unto those existing in the Lincoln and Warner, B. &. Co. Cases, in which the opinions of the court made no reference to the question of voluntary payment, we have concluded to pass that question by, as our conclusion on the subject of ratification disposes of the controversy. Reversed. Mr. Justice Brewer and Mr. Justice Peckham dissent. Mr. Justice Moody took no part in the decision of the cause. Mr. Justice Harlan, concurring: By the act of 1906, 34 Stat. at L. 636, chap. 3912, Congress legalized, ratified, and confirmed, as fully, to all intents and purposes, as if the same had, by prior act, been specifically authorized and directed, the collection of all duties, both import and export, imposed by the authorities of the United States or of the provisional military competent jurisdiction of the crime of homicide, as defined by the Penal Code of the Philippine Islands, art. 404, cannot be tried a second time in a civil court of those islands for the same offense. [No. 358.] 27, 1907. government in the Philippine Islands, prior Argued March 18, 19, 1907. Decided May to March 8th, 1902, at all parts and places in said Islands, from the United States or N ERROR to the Supreme Court of the from foreign countries. Interpreted in the philippine Islands to review a judgment Reversed and remanded with directions to light of previous and pending litigation, this act should be construed as denying the auwhich affirmed a judgment of the Court of thority of any court to take cognizance of a First Instance in the Province of Iloilo, consuit brought against the United States to victing a soldier of homicide, notwithstandrecover any claim arising out of such col-ing his prior acquittal by a court-martial. lections. The act should, therefore, be construed as withdrawing the consent of the United States to be sued on account of claims of that character. In this view, it was error to render judgment against the United States, whatever might be the liability of the collector, if his exaction of the duties in question was without authority of law. Upon this ground alone, and without considering any of the questions discussed in the opinion of the court, I concur in the judgment of reversal. HOMER E. GRAFTON, Plff. in Err., V. UNITED STATES. Solicitor General Hoyt for defendant in error. Mr. Justice Harlan delivered the opinion of the court: The writ of error brings up for review a judgment of the supreme court of the Philippine Islands, affirming a judgment of the court of first instance in the province of Iloilo, by which the plaintiff in error, Grafton, was adjudged guilty of homicide as defined by the Penal Code of the Philippines, Courts-martial-effect and conclusiveness of and sentenced to imprisonment for twelve judgments. 1. Civil tribunals cannot disregard the judgments of of a general general court-martial against an accused officer or soldier for mere errors, or for any reason not affecting the jurisdiction of the military court, even though the civil court, if it had first taken hold of the case, might have tried the accused for the same offense or even for one of higher grade arising out of the same facts. * Courts-martial-jurisdiction. years and one day. The history of this criminal prosecution, as disclosed by the record, is as follows: 2. A general court-martial has jurisdiction under the 62d Article of War, as of a crime not capital, to try a soldier for a hom-fully, icide punishable under the Penal Code of the Philippine Islands, art. 404, by imprison ment.† Criminal law-former jeopardy. 3. An acquittal of homicide, as defined in the Penal Code of the Philippine Islands, art. 404, is a bar to a subsequent conviction of the same offense arising out of the same facts, under an information charging the higher crime of assassination, as defined by art. 403, since, if not guilty of the lesser crime, the accused could not, for the same acts, be guilty of the offense of higher grade. Criminal law-former jeopardy-acquittal by court-martial. of the United States,, was tried before a Homer E. Grafton, a private in the Army general court-martial convened in 1904 by Brigadier General Carter, commanding the department of the Visayas, Philippine Islands, upon the following charge and specifications: "Charge: Violation of the 62d Article of War: Specification 1. In that Private Homer E. Grafton, Company G, 12th Infantry, being a sentry on post, did unlawfully, wilfully, and feloniously kill Florentino Castro, a Philippino, by shooting him with a U. S. magazine rifle, caliber .30. This at Buena Vista Landing, Guimaras, P. I., July 24th, 1904. Specification 2. In that Private Homer E. Grafton, Company G, 12th Infantry, being a sentry on post, did unlawfully, wilfully, and feloniously kill Felix Villanueva, a Philippino, by shooting him with a U. S. magazine rifle, caliber .30. This at Buena Vista Landing, Guimaras, P. I., July 24th, 1904." By the 58th Article of War it is provided: "In time of war, insurrection, or rebellion, 4. One acquitted by a military court of larceny, robbery, burglary, arson, mayhem, *Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Army and Navy, § 95. Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Army and Navy, § 90. |