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out going into the Treasury of the United | Hamilton, having taken a permit and paid States. Considering that the original ille- Dillin, surveyor of the port of Nashville, gality of the duties complained of was es- Tennessee, under the regulations, a sum of tablished by the previous decisions of this money for a permit to trade in cotton, sued court, and that the act of Congress of June to recover the same as having been illegally 30, 1906, ratifying the collection of duties, exacted. In deciding the case (p. 88, L. ed. was beyond the power of Congress to enact, p. 531) the court came to consider whether the court below rendered judgment against “the action of the Executive was author. the United States for the amount of duties ized, or, if not originally authorized, was paid. Ct. Cl.

confirmed by Congress." Both these quesApplying the doctrine settled by this tions were determined in the affirmative. court in the cases to which we have referred, When the court came to consider the legisconcerning the power to levy tariff duties lation relied upon as having confirmed the under the authority of the President, on acts of the President in establishing the goods taken from the United States into regulations in question, after stating the Porto Rico and the Philippine Islands, or same the court declared: “We are also of brought into the United States from either opinion that the act of July 2, 1864 [13 Stat. of such countries subsequent to the ratifica- at L. 375, chap. 225], recognized and contion of the treaty, and prior to the levy by firmed the regulations in question.” MatCongress of tariff duties, it is obvious that tingly v. District of Columbia, 97 U. S. 687, the court below correctly held that such tar- 24 L. ed. 1098, concerned the validity of an iff exactions were illegal. It follows, there act of Congress in effect confirming the fore, that the only question open for con- doings of the board of public works of the sideration is whether the court below erred District of Columbia touching the improvein refusing to give effect to the act of Con- ment of streets and roads, and ratifying cergress of June 30, 1906, which ratified the tain void assessments for street improvecollection of the duties levied under the or- ments. The court said (p. 690, L. ed. p. der of the President.

1099): As the text of the act of Congress is un- “We do not propose to inquire whether ambiguous, and manifests, as explicitly as the charges of the bill are well founded. can be done, the purpose of Congress to rati- Such an inquiry can have no bearing upon the fy, the case comes to the simple question case as it now stands; for were it conceded whether Congress possessed the power to that the board of public works had no auratify which it assumed to exercise. When thority to do the work that was done at the the controversy is thus reduced to its ulti- time when it was done, and consequently mate issue we think the error committed by no authority to make an assessment of a the court below, both in reason and au- part of its costs upon the complainants' thority, is readily demonstrable.

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 afirm 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 Consti- . granting 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, consideration that, although the duties were within the District, respecting the people illegally exacted, the illegality was not the and property therein, as may the legislature result of an inherent want of power in the of any state over any of its subordinate United States to have authorized the immunicipalities. It may therefore cure ir- position of the duties, but simply arose from regularities, and confirm proceedings which, the failure to delegate to the official the without the confirmation, would be void, authority essential to give immediate vabecause unauthorized, provided such con- lidity to his conduct in enforcing the pay. firmation does not interfere with interven- ment of the duties. And when these mising rights."

conceptions 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 which we have previously referred. Morethe plaintiff's right to recover, unless, by over, the fallacy which the proposition inthe application of some exception, this case volves becomes yet more obvious when it is is taken out of the operation of the general observed that the contention cannot even rule. And this brings us to consider the sev. be formulated without misstating the eral propositions relied upon at bar to es nature of the act of Congress; in other tablish that such is the case.

words, without treating that act as retroFirst. Whilst it is admitted that Con- spective legislation enacting a tariff, when, gress had the power to levy tariff duties on on its very face, the act is but an exercise goods coming into the United States from of the conceded power dependent upon the the Philippine Islands or coming into such law of agency to ratify an act done on beislands from the United States after the half of the United States, which the United ratification of the treaty, it is yet urged States could have originally authorized. that, as that body was without authority Third. It is urged that the ratifying statto delegate to the President the legislative ute cannot be given effect without violating power of prescribing a tariff of duties, it the 5th Amendment to the Constitution, hence could not, by ratification, make valid since to give efficacy to the act would dethe exercise by the President of a legislative prive the claimants of their property withauthority which could not have been dele-out due process of law, or would approprigated to him in the first instance. But the ate the same for public use without just premise upon which this proposition rests compensation. This rests upon these two presupposes that Congress, in dealing with contentions: It is said that the money paid : the Philippine Islands, may not, growing out to discharge the illegally exacted duties of the relation of those islands to the United after payment, as before, "justly and equiStates, delegate legislative authority to such tably belonged” to the claimants, and that agencies as it may select,-a proposition the title thereto continued in them as a which is not now open for discussion. Dorr vested right of property. It is consequently v. United States, 195 U. S. 138, 49 L. ed. 128, insisted that the right to recover the money 24 Sup. Ct. Rep. 808.

could not be taken away without violating Second. As to the duties collected were il the 5th Amendment, as stated. But here, legal, it is insisted that, for the purpose of again, the argument disregards the fact that testing the validity of the act of Congress, when the duties were illegally exacted in the fact of such collection must be put out the name of the United States Congress of view, and the act ratifying the exaction

possessed the power to have authorized must be treated as if it were solely an their imposition in the mode in which they original exercise by Congress of the taxing were enforced, and hence, from the very power. This being done, it is said, reduces moment of collection, a right in Congress to the case to the inquiry, had Congress power, years after goods which were entitled to ratify the transaction, if it saw fit to do free entry had been brought into the Phil. so, was engendered. In other words, as a ippine Islands, to retroactively impose tariff necessary result of the power to ratify, it duties upon the consummated act of bring followed that the right to recover the duties . ing the goods into that country? But the in question was subject to the exercise by proposition begs the question for decision, Congress of its undoubted power to ratify. by shutting out from view the potential To hold to the contrary would be to say fact that when the goods were brought into that whilst the unauthorized act of an ofthe Philippine Islands there was a tariff in ficer done on behalf of the United States . existence under which duties were exacted was subject to ratification by the United in the name of the United States. Indeed, States, yet, if the officer acted without authe contention goes further even than this, thority, the act, when performed, annisince it entirely disregards the important | hilated 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.

L. ed. 458; Excelsior Mfg. Co. v. Keyser, 62 But if it be conceded that the claim to a Miss. 155; Phenix Ins. Co. v. Pollard, 63 return of the moneys paid in discharge of the Miss. 641; McLane v. Bonn, 70 Iowa, 752, exacted duties was, in a sense, a vested 30 N. W. 478; Johnson v. Richardson, 44 right, it in principle, as we have already Ark. 365).” And the following cases, observed, would be but the character of in various forms, illustrate the application right referred to by Kent in his Commen of the principle: United States v. Morris, taries, where, in treating of the validity of 10 Wheat. 246, 6 L. ed. 314; Grim v. Weisstatutes retroactively operating on certain senberg School District, 57 Pa. 433, 438, 98 classes of rights, it is said (vol. 2, pp. 415, Am. Dec. 237; Chester v. Black, 132 Pa. 416):

568, 6 L.R.A. 802, 19 Atl. 276; Price v. Huey, “The legal rights affected in those cases 22 Ind. 18; Welch v. Wadsworth, 30 Conn. by the statutes were deemed to have been 149, 158, 79 Am. Dec. 236; Rich v. Flanders, vested subject to the equity existing against | 39 N. H. 310, 311; Iowa R. Land Co. v. Soper, them, and which the statutes recognized and 39 Iowa, 112, 119; Ferry v. Campbell, 110 enforced. Goshen v. Stonington, 4 Conn. Iowa, 290, 50 L.R.A. 92, 81 N. W. 604; Mills 209, 10 Am. Dec. 121; Wilkinson v. Leland, v. Geer, 111 Ga. 275, 279, 287, 288, 52 L.R.A. 2 Pet. 627, 7 L. ed. 542; Langdon v. Strong, 934, 36 S. E. 673. 2 Vt. 234; Watson v. Mercer, 8 Pet. 88, 8 Fourth. Aside, however, from principle L. ed. 876, 3 Story. Const. 267.”

and the general result of the adjudged cases, Nor does the mere fact that, at the time it is finally insisted that the want of power the ratifying statute was enacted, this ac- in Congress to ratify the collection of the tion was pending for the recovery of the sums duties in question under the circumstances paid, cause the statute to be repugnant to here disclosed conclusively results from the the Constitution. The mere commencement decision in De Lima v. Bidwell, 182 U. S. 1, of the suit did not change the nature of 45 L. ed, 1041, 21 Sup. Ct. Rep. 743. As we the right. Hence again, if it be conceded have seen, that case concerned the validity that the capacity to prosecute the pending of collections of duties in the port of New suit to judgment was, in a sense, a vested York on goods brought into the United right, certainly also the power of the United States from Porto Rico, and, whilst insisting States to ratify was, to say the least, a on the legality of the duties, the governright of as high a character. To arrogate ment, at the same time, urged that, even if to themselves the authority to devest the originally invalid, they had yet been ratiright of the United States to ratify is, then, fied as the result of provisions of a specified in reason, the assumption upon which the act of Congress which had been passed asserted right of the claimants to recover after the suit to recover the duties had been must rest.

commenced. As that portion of the duties Considering how far the bringing of ac- sued for which had been collected after ratitions would operate to deprive government fication of the treaty were decided to be ilof the power to enact curative statutes legal, it followed that a decision as to the which, if the actions had not been brought, question of ratification was required. In would have been unquestionably valid, passing upon the subject, after intimating Cooley, in his Constitutional Limitations, doubt as to whether the act relied upon, as says (7th ed. p. 543):

manifesting the intention of Congress to "Nor is it important, in any of the cases ratify, was intended to have that effect, it to which we have referred, that the legis- was remarked (p. 199, L. ed. p. 1057, Sup. lative act which cures the irregularity, de. Ct. Rep. p. 754): fect, or want of original authority, was "It can clearly have no retroactive effect passed after suit brought, in which such ir- as to moneys theretofore paid under proregularity or defect became matter of im- test, for which an action to recover back portance. The bringing of suit vests in a had already been brought.

had already been brought. As the action party no right to a particular decision (Ba- in this case was brought March 13, 1900, con v. Callender, 6 Mass.: 303; Butler v. eleven days before the act was passed, the Palmer, 1 Hill, 324; Cowgill v. Long, 15 Ill. right to recover the money sued for could 202; Miller v. Graham, 17 Ohio St. 1; State not be taken away by a subsequent act of v. Squires, 26 Iowa, 340; Patterson v. Phil Congress. Plaintiff's sue in assumpsit for brook, 9 Mass. 151); and his case must be money which the collector has in his hands, determined on the law as it stands, not when justly and equitably belonging to them. To the suit was brought, but when the judg- say that Congress could, by a subsequent ment is rendered (Watson v. Mercer, 8 Pet. act, deprive them of the right to prosecute 88, 8 L. ed. 876; Mather v. Chapman, 6 this action, would be beyond its power. In Conn. 54; People ex rel. Bristol v. Ingham any event, it should not be interpreted so County, 20 Mich. 95; Satterlee v. Matthew- 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 than those in controversy, to which the act Watts & S. 171, 40 Am. Dec. 493; Donovan clearly applied, and “that question [as to v. Pitcher, 53 Ala. 411, 25 Am. Dec. 634; them] was put at rest by this ratification.” Palairet's Appeal, 67 Pa. 479, 5 Am. Rep. Further, in calling attention to the ambi450; State use of Methodist Episcopal guity in the ratifying statute relied upon and Church v. Warren, 28 Md. 338."

the resulting doubt whether it embraced all Now, considering the language just quoted duties, it was pointed out that the fact that in connection with the doubt expressed as actions were pending at the time of the to the import of the alleged ratifying stat passage of the ratifying act lent cogency to ute, it results that the reasoning employed the view that, if Congress had intended by stated two considerations: First, the want the ratification to affect them, it would have of power in Congress to ratify after suit i explicitly so declared. On this subject the brought; and second, the duty of constru-court said (p. 498, L. ed. p. 1119, Sup. Ct. ing the statute relied upon so as not to pro- Rep. p. 730): duce ratification, in view of its ambiguity. “This construction is favored by the conAs the question of construction was last sideration that the suits had been begun stated and that question was declared to when the act of July 1, 1902, was passed, be "in any event” decisive, we think the ob- and that, even if Congress could deprive servations made concerning the want of plaintiffs of their vested rights in process power to ratify after suit brought must be of being asserted (Hamilton v. Dillin, 21 regarded as not having been necessary to Wall. 73, 22 L. ed. 528), still it is not to be the decision rendered, and therefore must presumed to do so on language which, literbe treated as obiter. And this interpreta- ally taken, has a narrower sense.” tion was, we think, applied in the cases of Certainly, this language, particularly in Lincoln v. United States and Warner, B. & view of the reference made to Hamilton v. Co. v. United States, 197 U. S. 419, 49 L. ed. Dillin, is wholly incompatible with the con816, 25 Sup. Ct. Rep. 455. In those cases, ception that the observation as to pending as we have said, one of the defenses insisted actions made in De Lima v. Bidwell was to upon by the government was a ratification be taken as having settled the proposition alleged to have been operated by the act that a power to ratify which otherwise obof Congress of July 1, 1902, which was tained could not be exerted after suit passed after the bringing of the actions to brought. recover.

It is patent on the face of the Be this as it may, however, as, after deopinion announced on the original hearing | liberate consideration, we are of opinion that the decision was exclusively based upon that the mere bringing of this action did the ground that the act of Congress was so not deprive Congress of its power to ratify ambiguous concerning the ratification relied the collections made by its officers, in the upon that it should not be implied that such name of the United States, of the moneys ratification was contemplated. And it is to sought to be recovered in this action, we be observed that De Lima v. Bidwell was may not allow the remarks made in De not overlooked, since that case was referred Lima v. Bidwell, under the circumstances to in the course of the opinion. On the re- stated, to control our judgment. rehearing the case was argued on questions There was much discussion at bar consubmitted by the court, viz., whether the act cerning whether the payments of the duties relied upon manifested the purpose to rati- were voluntary. As it would seem that the fy, and, if it did, whether Congress had circumstances surrounding these payments power so to do. In the opinion on the re- were substantially like unto those existing hearing, while the court reiterated the view in the Lincoln and Warner, B. &. Co. Cases, previously expressed, that the act could not in which the opinions of the court made no be treated as ratifying the collection of the reference to the question of voluntary pay. duties sought to be recovered, because of its ment, we have concluded to pass that quesambiguity in that regard, yet it expressly tion by, as our conclusion on the subject of recognized the power in Congress to ratify, ratification disposes of the controversy. and in effect declared that, as to those Reversed. things to which the alleged ratifying act clearly applied, ratification had resulted. Mr. Justice Brewer and Mr. Justice PeckThis is so, since in the course of the opinion, ham dissent. in answering the argument that the alleged ratifying statute would be meaningless un- Mr. Justice Moody took no part in the less it was held applicable to the particular decision of the cause. duties in controversy, it was pointed out (202 U. S. p. 499, 50 L. ed. p. 1119, 26 Sup. Mr. Justice Harlan, concurring: Ct. Rep. p. 730) that there were duties By the act of 1906, 34 Stat. at L. 636,

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chap. 3912, Congress legalized, ratified, and competent jurisdiction of the crime of hom. confirmed, as fully, to all intents and pur- icide, as defined by the Penal Code of the poses, as if the same had, by prior act, been Philippine Islands, art. 404, cannot be tried

a second time in a civil court of those specifically authorized and directed, the col

islands for the same offense. lection of all duties, both import and export, imposed by the authorities of the

[No. 358.] United States or of the provisional military government in the Philippine Islands, prior Argued March 18, 19, 1907. Decided May to March 8th, 1902, at all parts and places

27, 1907. in said Islands, from the United States or from foreign countries. Interpreted in the TN ERROR to the Supreme Court of the light of previous and pending litigation, this Philippine Islands to review a judgment act should be construed as denying the au- which 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, not withstandrecover any claim arising out of such col.ing his prior acquittal by a court-martial. lections. The act should, therefore, be con- Reversed and remanded with directions to strued as withdrawing the consent of the dismiss the complaint or information and United States to be sued on account of discharge the accused from custody. claims of that character. In this view, it

The facts are stated in the opinion. was error to render judgment against the

Messrs. Clarence S. Nettles, John H. AtUnited States, whatever might be the lia- wood, and Frederic D. McKenney for plainbility of the collector, if his exaction of the tiff in error. duties in question was without authority of

Solicitor Ceneral Hoyt for defendant in law. Upon this ground alone, and without error. considering any of the questions discussed in the opinion of the court, I concur in the

Mr. Justice Harlan delivered the opinion judgment of reversal.

of the court:

The writ of error brings up for review a judgment of the supreme court of the Phil

ippine Islands, affirming a judgment of the HOMER E. GRAFTON, Piff. in Err., court of first instance in the province of

Iloilo, by which the plaintiff in error, GrafUNITED STATES.

ton, was adjudged guilty of homicide as de

fined by the Penal Code of the Philippines, Courts-martial-effect and conclusiveness of and sentenced to imprisonment for twelve judgments.

years and one day. 1. Civil tribunals cannot disregard the The history of this criminal prosecution, judgments of a general court-martial

as disclosed by the record, is as follows: against an accused officer or soldier for mere

Homer E. Grafton, a private in the Army errors, or for any reason not affecting the jurisdiction of the military court, even

of the United States,, was tried before a though the civil court, if it had first taken general court-martial convened in 1904 by hold of the case, might have tried the ac- Brigadier General Carter, commanding the cused for the same offense or even for one department of the

the Visayas, Philippine of higher grade arising out of the same Islands, upon the following charge and specfacts. *

ifications: , "Charge: Violation of the 62d Courts-martial-jurisdiction.

Article of War: Specification 1. In that 2. A general court-martial has jurisdic-Private Homer E. Grafton, Company G, 12th crime not capital, to try a soldier for a homo Infantry, being a sentry on post, did unlaw. icide punishable under the Penal Code of the fully, wilfully, and feloniously kill FlorenPhilippine Islands, art. 404, by imprison- tino Castro, a Philippino, by shooting him ment.

with a U. S. magazine rifle, caliber .30. This Criminal law-former jeopardy.

at Buena Vista Landing, Guimaras, P. I., 3. An acquittal of homicide, as defined July 24th, 1904. Specification 2. In that in the Penal Code of the Philippine Islands, Private Homer E. Grafton, Company G, 12th art. 404, is a bar to a subsequent conviction Infantry, being a sentry on post, did unlawof the same offense arising out of the same fully, wilfully, and feloniously kill Felix facts, under an information charging the Villanueva, a Philippino, by shooting him higher crime of assassination, as defined by with a U. S. magazine rifle, caliber .30. This

403 crime, the accused could not, for the same at Buena Vista Landing, Guimaras, P. I., acts, be guilty of the offense of higher grade. July 24th, 1904." Criminal law-former jeopardy-acquittal

By the 58th Article of War it is provided : by court-martial.

"In time of war, insurrection, or rebellion, 4. One acquitted by a military court of I larceny, robbery, burglary, arson, mayhem, *Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Army and Navy, § 95. E?. Note.--For cases in point, see vol. 4, Cent. Dig. Army and Navy, § 90.

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