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or upon the question of ratification by him. I a general finding of facts and a judgment on There are facts from which the consent or for the plaintiff below, the court decided that ratification might be inferred, or the con- an exception to the general finding of the trary, but there is no finding of any ultimate court for the plaintiff upon the evidence adfact regarding the matter.

duced at the trial presented no question of The result of the decisions under the stat-law which the court could review. In that tes providing for a waiver of trial by jury, case there was no agreed statement of facto and the proceedings on a trial by the court Here, although there is a general finding (Rev. Stat. 88 849, 700) is that when there in favor of the defendant, yet there is a are special findings they must be findings of statement of facts which contains certain ul. what are termed ultimate facts, and not the timate facts, together with certain other evidence from which such facts might be but facts evidential in their nature from which are not found. If, therefore, an agreed an important and ulitmate fact might be in. statement contains certain facts of that na- ferred, but in regard to which there is no ture, and in addition thereto and as part of agreement or finding whatever. In such such statement there are other facts of an case it would not be proper to regard the evidential character only, from which a agreed statement as a sufficient finding of material ultimate fact might be inferred, ultimate facts within the statute. but which is not agreed upon or found, we In Raimond v. Terrebonne Parish, 132 U. cannot find it, and we cannot decide the case S. 192, 33 L. ed. 309, 10 Sup. Ct. Rep. 57, it on the ultimate facts agreed upon without was said that the agreed statement of facts reference to such other facts. In such case by the parties or a finding of facts by the we must be limited to the general finding by circuit court must state the ultimate facts the court. We are so limited because the of the case, presenting questions of law only, agreed statement is not a compliance with and not be a recital of evidence or of circumthe statute.

stances which may tend to prove the ultiAs to what is necessary in special findings mate facts, or from which they may be inor in an agreed statement of facts, the au. ferred. thorities are decisive. It is held that upon In Glenn v. Fant, 134 U, S. 398, 33 L. ed. a trial by the court, if special findings are 969, 10 Sup. Ct. Rep. 583, there was a stipumade, they must be not a mere report of the lation that the case should be heard upon an evidence, but a finding of those ultimate agreed statement of facts annexed, with facts on which the law must determine the leave to refer to exhibits filed therewith. It rights of the parties; and if the finding of was held that the stipulation could not be facts be general, only such rulings of the regarded as taking the place of a special court in the progress of the trial can be re verdict or of a special finding of facts, and viewed as are presented by a bill of excep. that the court had no jurisdiction to detertions; and in such case the bill cannot be mine the question of law arising thereon. used to bring up the whole testimony, for

It is true there was no bill of exceptions in review, any more than in a trial by jury. that case, but the bill in this case presents Norris v. Jackson, 9 Wall. 125, 19° L. ed. no exception taken during the progress of 608.

the trial, and only contains an exception to In this case the finding is general, and, the conclusion of the trial court in ordering strictly construing the statute, the only judgment upon the issues in favor of the de questions which would be reviewable would fendant. be those questions which arose during the Lehnen v. Dicleson, 148 U. S. 71, 37 L. ed. progress of the trial, and which were pre 373, 13 Sup. Ct. Rep. 481, decided that any sented by bill of exceptions. It has, how. mere recital of the testimony, whether in the ever, been held that where there was an opinion of the court or in a bill of excepagreed statement of facts submitted to the tions, could not be deemed a special finding trial court and upon which its judgment was of facts within the scope of the statute; and founded, such agreed statement would be if there were a general finding and no agreed taken as an equivalent of a special finding statement of facts, the court must accept of facts. Wayne County Supers. v. Kenni- that finding as conclusive, and limit its incott, 103 U. 8. 554, 26 L. ed. 486. But as quiry to the sufficiency of the complaint and such equivalent, there must of course be a to the rulings, if any be preserved. on ques. finding or an agreement upon all ultimate tions of law arising during the trial. The facts, and the statement must not merely court, in the opinion written by Mr. Justice present evidence from which such facts or Brewer, said: any of them may be inferred.

*“But the burden of the statute is not an exception to a general inding of the thrown off simply because the witnesses do court on a trial without a jury brings up no not contradict each other, and there is no question for review. The finding is conclu- conflict in the testimony. It may be an sive, and there must be exceptions taken to easy thing in one case for this court, when the rulings of the court during the trial in the testimony consists simply of deeds, order to permit a review thereof._Mercan- mortgages, or other written instruments, to tile Mut. Ins. Co. v. Folsom, 18 Wall. 237, make a satisfactory finding of the facts; and 21 L. ed. 827.

in another it may be difficult when the testiIn Martinton v. banks, 112 U. S. 670, mony is largely in pa and the witnesses 28 L. ed. 862, 5 Sup. Ct. Rep. 321, which was directly contradict each other. But the a trial before the judge without the inter- rule of the statute is of universal applicavention of a jury, and where there was only Ition. It is not relaxed in one case because

of the ease in determining the facts, or rig. | Argued December 17, 18, 19, 20, 1900. Deorously enforced in another because of the

cided December 2, 1901. dithculty in such determination. The duty of finding the facts is placed

wel habet nos authority to examine I United States for the Northern District court.

the testimony in any case, and from it make of Illinois to review a decree of forfeiture . finding the ultimate facts." In St. Louis v. Western 0. Teleg. Co. 186 and sale

of articles alleged to have been imU. 8. 388, 41 L. ed. 1044, 17 Sup. Ct: Rep: versed, and cause remanded, with directions

ported without payment of duties. Ro608, it was held that the special finding of

to quash the information. facts referred to in the acts allowing parties

The facts are stated in the opinion. to submit issues of fact in civil cases to be

Messrs. Lawrence Harmon and tried and determined by the court is not a mere report of the evidence, but a finding of Charles H. Aldrioh for plaintiff in error,

Emil J. Pepke. those ultimate facts upon which the law must determine the rights of the parties; in error, the United States.

Attorney General Griggs for defendant and if the finding of facts be general, only such rulings made in the progress of the trial can be reviewed as are presented by a * Mr. Chief Justice Fuller delivered the * bill of exceptions; and in such case the bill opinion of the court: cannot be used to bring up the whole testi- Emil J. Pepke, a citizen of the United mony for review, any more than in a trial States and of the state of North Dakota, enby jury.

listed in the First Regiment of the North We now hold, in accordance with the au. Dakota United States Volunteer Infantry, thorities, that an agreed statement of facts and was assigned for duty with his regiwhich is so defective as to present, in addi- ment in the island of Luzon, in the Philip tion to certain ultimate facts, other and evi- pinc islands, and continued in the military dential facts upon which a material ultimate service of the United States until the regi. fact might have been, but which was not, ment was ordered to return, and, on arriv. agreed upon or found, cannot be regarded ing at San Francisco, was discharged Sepoven as a substantial compliance with the tember 25, 1899. Atatute. Being concluded by the general He brought with him from Luzon four. finding of the issues in favor of defendant, teen diamond rings, which he had there pur. there is no error in the record, and the judg. chased, or acquired through a loan, subsement must be affirmed.

quent to the ratification of the treaty of peace between the United States and Spain,

February 6, 1899, and the proclamation (183 U, S. 176)

thereof by the President of the United THE DIAMOND RINGS.

States, April 11, 1899.

In May 1900, in Chicago, these rings were Duties importation from Philippine 18- seized by a customs officer as having been im.

lands what is foreign country, force ported contrary to law, without entry, or of Senate resolution eaplaining intent of declaration, or payment of duties, and an ratification of treaty effect of insur- information was filed to enforce the forfeito rection on title of United States to Phil ure thereof. ippine Islands.

To this Pepke filed a plea setting up the

facts, and claiming that the rings were not 1. Dlamond rings brought into the United subject to customs duties; the plea was held

States from the island of Luzon, in the Phil. insufficient; forfeiture and sale were de ippine Islands, subsequent to the proclama-creed; and this writ of error was prosetion of the ratification of the treaty of peace cuted. between the United States and Spain, are not imported from a foreign country within the

The tariff act of July 24, 1897 (30 Stat. meaning of the tarif act of July 24, 1897, at L. 151, chap. 11), in regulation of com.

providing for duties on articles so imported. merce with foreign nations, levied duties & The meaning of the treaty of peace with “upon all articles imported from foreign

Spain by which the Philippine Islands were countries.” ceded to the United States cannot be con. Were these rings, acquired by this soldier trolled by a Senate resolution adopted, after after the ratification of the treaty was prothe ratification of the treaty, by a vote of claimed, when brought by him from. Luzon not intended to incorporate the inhabitants of to California, on his return with his regi. the Philippines Into citizenship of the United ment to be discharged, imported from a for. States, or to permanently annex those islands. eign country?

The legal title and possession of the United This question has already been answered States to the Philippine Islands, derived from in the negative, in respect of Porto Rico, in the cession in the treaty of peace with Spain, De Lima v. Bidwell, 182 U. S. 1, 45 L. ed. whose sovereignty and possession under claim 1041, 21 Sup. Ct. Rep. 743, and unless the of title had existed for many years prior to the war with the United States, is unaffected cases can be distinguished, which we are of by the continuance in Insurrection against the opinion they cannot be in this particular, en United States of those who had been pre that decision is controlling. viously in Insurrection against Spain.

* The Philippines, like Porto Rico, became,

by virtue of the treaty, ceded conquered ter [No. 158.)

ritory, or territory ceded by way of indemni.

were.

ty. The territory ceased to be situated as ruling as to the Philippines. By the 3d ar: Castine was when occupied by the British ticle of the treaty Spain ceded to the United forces in the war of 1812, or as Tampico States "the archipelago known as the Phil. was when occupied by the troops of the ippine islands,” and the United States United States during the Mexican war, agreed to pay Spain the sum of $20,000,000 "cases of temporary possession of territory within three months. The treaty was rati. by lawful an regular governments at war fied; Congress appropriated the money; the with the country of which the territory so ratification was proclaimed. The treatypossessed was part.” Thorington v. Smith, making power, the executive power, the legis8 Wall. 10, 19 L. ed. 363. The Philippines lative power, concurred in the completion of were not simply occupied, but acquired, and the transaction. having been granted and delivered to the The Philippines thereby ceased, in the lan. United States, by their former master, were guage of the treaty, "to be Spanish.” Ceas. no longer under the sovereignty of any for-ing to be Spanish, they ceased to be foreign eign nation.

country. They came under the complete In Cross V. Harrison, 16 How. 164, 14 L. and absolute sovereignty and dominion of ed. 889, the question was whether goods im- the United States, and so became territory ported from a foreign country into Cali- of the United States over which civil gove fornia after the cession were subject to our ernment could be established. The result tariff laws, and this court held that they was the same although there was no stipu.

lation that the native inhabitants should be In De Lima v. Bidwell the question was incorporated into the body politic, and none whether goods imported into New York securing to them the right to choose their from Porto Rico, after the cession, were sub- nationality. Their allegiance became due to ject to duties imposed by the act of 1897 on the United States, and they became entitled "articles imported from foreign countries,” to its protection. and this court held that they were not. That

But it is said that the case of the Philipact regulated commerce with foreign na- pines is to be distinguished from that of tions, and Porto Rico had ceased to be with- Porto Rico because on February 14, 1899, in that category; nor could territory be for- after the ratification of the treaty, the Sena eign and domestic at the same time. ate resolved, as given in the margin,t that

Among other things it was there said: it was not intended to incorporate the in"The theory that a country remains foreign habitants of the Philippines into citizenship with respect to the tariff laws until Con of the United States, nor to permanently an. gress has acted by embracing it within the nex those islands. customs union presupposes that a country We need not consider the force and effect may be domestic for one purpose and foreign of a resolution of this sort, if adopted by for another. It may undoubtedly, become Congress, not like that of April 20, 1898, in necessary for the adequate administration respect of Cuba, preliminary to the declaraof a domestic territory to pass a special act tion of war, but after title had passed by providing the proper machinery and officers, ratified cession. It is enough that this was as the President would have no authority, a joint resolution; that it was adopted by except under the war power, to administer the Senate by a vote of 26 to 22, not two it himself; but no act is necessary to make thirds of a quorum; and that it is absolutely it domestic territory if once it has been without legal significance on the question beceded to the United States.

This

fore us. theory also presupposes that territory may be controlled by subsequent explanations of

The meaning of the treaty cannot be held indefinitely by the United States; some of those who may have voted to ratify that it may be treated in every particular, it. What view the House might have taken except for tariff purposes, as domestic terri. tory; that laws may be enacted and enforced as to the intention of the Senate in ratify. by officers of the United States sent there ing the treaty we are not informed, nor is it for that purpose; that'insurrections may be material; and if any implication from the suppressed, wars carried on, revenues col- action referred to could properly be in. lected, taxes imposed; in short, that every dulged, it would seem to be that two thirds thing may be done which a government can of a quorum of the Senate did not consent do within its own boundaries, and yet that to the ratification on the grounds indicated. the territory may still remain a foreign t“Resolved by the Senate and House of Repcountry. That this state of things may con- resentatives of the United States of America in tinue for years, for a century even, but that, Congress asseindled, That by the ratification of until Congress enacts otherwise, it still re the treaty of peace with Spain it is not intended mains a foreign country. To hold that this to incorporate the inhabitants of the Philippine can be done as matter of law we deem to be Islands Into citizenship of the United States, por

is it intended to permanently annex sald Ispure judicial legislation. We find no war.

Jands as an integral part of the territory of the rant for it in the Constitution or in the pow- United States; but it is the intention of the ers conferred upon this court. It is true United States to establish on sald Islands a the nonaction of Congress may occasion a government suitable to the wants and conditions temporary inconvenience; but it does not of the inhabitants of sald Islands to prepare follow that courts of justice are authorized them for local self-government, and in due time

to make such disposition of said Islands as will to remedy it by inverting the ordinary mean. best promote the interests of the United States ing of words.”

and the inhabitants of said islands." Cong. No reason is perozived for any different Rec., 55th Cong. 30 Sess. vol. 32, p. 1847.

170

It is further contended that a distinction | The distinction was drawn between a special exists in that, while complete possession of act in respect of the particular country and Porto Rico was taken by the United States, a general and prior act only applicable to this was not so as to the Philippines, be- (*countries foreign to ours in every sense. The cause of the armed resistance of the native latter was obliged to conform to the rule of inhabitants to a greater or less extent. uniformity, which was wholly disregarded

We must decline to assume that the gov- in the former. ernment wishes thus to disparage the title The ruling in the Case of De Lima reof the United States, or to place itself in the mained unaffected, and controls that under position of waging a war of conquest. consideration. And this is so notwithstand.

The sovereignty of Spain over the Philip-ing four members of the majority in the De pines and possession under claim of title had Lima Case were of opinion that Porto Rico existed for a long series of years prior to the did not become by the cession subjected to war with the United States. The fact that the exercise of governmental power in the there were insurrections against her, or that levy of duties unrestricted by constitutional uncivilized tribes may have defied her will, limitations. did not affect the validity of her title. She Decree reversed and cause remanded, granted the islands to the United States, with directions to quash the information. and the grantee in accepting them took noth. ing less than the whole grant.

Mr. Justice Gray, Mr. Justice Shiras, If those in insurrection against Spain con- Mr. Justice White and Mr. Justice Motinued in insurrection against the United Kenna dissented, for the reasons stated in States, the legal title and possession of the their opinions in De Lima v. Bidwell, 182 latter remained unaffected.

U. S. 1, 200-220, 45 L. ed. 1041, 1057-1065, We do not understand that it is claimed 21 Sup. Ct. Rep. 743, in Dooley v. United that in carrying on the pending hostilities States, 182 U. S. 222, 236–243, 45 L. ed. the government is seeking to subjugate the 1074, 1083-1085, 21 Sup. Ct. Rep. 762, and people of a foreign country, but, on the con- in Downes v. Bidwell, 182 U. S. 244, 287–347, trary, that it is preserving order and sup- 45 L. ed. 1088, 1106-1129, 21 Sup. Ct. Rep. pressing insurrection in the territory of the 770. United States. It follows that the possession of the United States is adequate pog.

Mr. Justice Brown, concurring: session under legal title, and this cannot be I concur in the conclusion of the court in asserted for one purpose and denied for an- this case, and in the reasons given therefor other. We dismiss the suggested distinc. in the opinion of the Chief Justice. tion as untenable.

The case is distinguishable from De Lima But it is sought to detract from the v. Bidwell in but one particular, viz., the weight of the ruling in De Lima v. Bidwell Senate resolution of February 6, 1899. With because one of the five justices concurring regard to this, I would say that in my view in the judgment in that case concurred in the case would not be essentially different the judgment in Downes v. Bidwell, 182 U. if this resolution had been adopted by a S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770. unanimous vote of the Senate. To be effica

In De Lima v. Bidwell Porto Rico was held cious such resolution must be considered not to be a foreign country after the cession, either (1) as an amendment to the treaty, and that a prior act exclusively applicable or (2) as a legislative act qualifying or to foreign countries became inapplicable. modifying the treaty. It is neither.

In Downes v. Bidwell the conclusion of a It cannot be regarded as part of the majority of the court was that an act of treaty, since it received neither the approval Congress levying duties on goods imported of the President nor the consent of the other from Porto Rico into New York, not in con contracting power. A treaty in its legal formity with the provisions of the Constitu- sense is defined by Bouvier as “a compact tion in respect to the imposition of duties, made between two or more independent naimposts, and excises, was valid. Four of tions with a view to the public welfare” the members of the court dissented from and (2 Law Dict. 1136), and by Webster as five concurred, though not on the same "an agreement, league, or contract between grounds, in this conclusion. The justice two or more nations or sovereigns, formally who delivered the opinion in De Lima's Case signed by commissioners properly author. was one of the majority, and was of opin- ized, and solemnly ratified by the several ion that although by the cession Porto Rico sovereigns or the supreme power of each ceased to be a foreign country, and became state.” In its essence it is a contract. It a territory of the United States and domes differs from an ordinary contract only in be tic, yet that it was merely "appurtenant” ing an agreement between independent states territory, and “not a part of the United instead of private parties. Foster v. Neilson, States within the revenue clauses of the Con- 2 Pet. 253, 314, 7 L. ed. 415, 435; Head stitution."

Money Cascs, 112 U. S. 580, sub nom. Edye This view placed the territory, though not v. Robertson, 28 L. ed. 798, 5 Sup. Ct. Rep. foreign, outside of the restrictions applica- 247. By the Constitution (art. 2, § 2) the ble to interstate commerce, and treated the President "shall have power, by and with the power of Congress, when affirmatively exer- *advice and consent of the Senate, to make cised over a territory, situated as supposed, treaties, provided two thirds of the Senators as uncontrolled by the provisions of the Con- present concur.” Obviously the treaty must stitution in respect of national taxation.' contain the whole contract between the par. ties, and the power of the Senate is limited or modify a treaty with a foreign stata to à ratification of such terms as have al. This was not done. ready been agreed upon between the Presi. The resolution in question was introduced dent, acting for the United States, and the as a joint resolution, but it never received commissioners of the other contracting the assent of the House of Representatives power. The Senate has no right to ratify or the signature of the President. While a the treaty and introduce new terms into it, joint resolution, when approved by the which shall be obligatory upon the other President, or, being disapproved, is passed power, although it may refuse its ratifica- by two thirds of each House, has the effect of tion, or make such ratification conditional a law (Const. art. 1, 8 7), no such effect can upon the adoption of amendments to the be given to a resolution of either House act. treaty. If, for instance, the treaty with ing independently of the other. Indeed, the Spain had contained a provision instating above clause expressly requires concurrent the inhabitants of the Philippines as citizens action upon a resolution before the same of the United States, the Senate might have shall take effect." refused to ratify it until this provision was This question was considered by Mr. Atstricken out. But it could not, in my opin- torney General Cushing in his opinion on ion, ratify the treaty and then adopt a reso- certain Resolutions of Congress (6 Ops. lution declaring it not to be its intention Atty. Gen. 680), in which he held that while to admit the inhabitants of the Philippine joint resolutions of Congress are not distin. islands to the privileges of citizenship of the guishable from bills, and have the effect of United States. Such resolution would be law, separate resolutions of either House of inoperative as an amendment to the treaty, Congress, except in matters appertaining to since it had not received the assent of the their own parliamentary rights, have no President or the Spanish commissioners. legal effect to constrain the action of the

Allusion was made to this question in the President or heads of departments. The New York Indians v. United States, 170 U. whole subject is there elaborately discussed. 8. 1, 21, 42 L. ed. 927, 934, 18 Sup. Ct. Rep.

In any view taken of this resolution it ap531, wherein it appeared that, when a treaty pears to me that it can be considered only with certain Indian tribes was laid before as expressing the individual views of the the Senate for ratification, several articles Senators voting upon it. were stricken out, several others amended, I have no doubt the treaty might havez a new article added, and a proviso adopted provided, as did the act of Congress annex. that the treaty should have no force or effect ing Hawaii, that the existing customs*relawhatever until the amendment had been sub- tions between the Spanish possessions ceded mitted to the tribes, and they had given by the treaty and the United States should their free and voluntary assent thereto. remain unchanged until legislation had been This resolution, however, was not found in had upon the subject; but in the absence of the original or in the published copy of the such provision the case is clearly controlled treaty, or in the proclamation of the Presi- by that of De Lima v. Bidroell. dent, which contained the treaty without the amendments. With reference to this the court observed: “The power to make

(183 U, S. 161) treaties is vested by the Constitution in the HENRY W. DOOLEY et al., Plffs. in Err. President and Senate, and, while this proviso was adopted by the Senate, there is no ovidence that it ever received the sanction or

UNITED STATES. approval of the President. It cannot be considered as a legislative act, since the

Constitutional laro-Foraker act-duty on

0.

pow. er to legislate is vested in the President,

esports-imports into Porto Rico. Senate, and House of Representatives. There is something, too, which shocks the con 1. The tax imposed upon goods imported into science in the idea that a treaty can be put

Porto Rico from New York under the provl.

sions of the Foraker act of April 12, 1900 forth as embodying the terms of an arrange- (31 Stat. at L. 77, chap. 191), is not a tax or ment with a foreign power or an Indian duty on articles exported from the United tribe, a material provision of which un. States within the meaning of U. 8. Const. art. known to one of the contracting parties, and 1, & 9, declaring that no tax or duty shall bo is kept in the background to be used by the lald on articles exported from any state, since other only when the exigencies of a particu

the goods are not exported to a foreign coun.

try. lar case may demand it. The proviso never

2. appears to have been called to the attention

A duty on imports to Porto Rico, within the of the tribes, who would naturally assume

power of Congress under U. S. Const. art. 1, I

8, “to lay and collect taxes, dutles, imposta, that the treaty embodied in the presidential

and excises," is imposed by the Foraker act proclamation contained all the terms of the

of April 12, 1900 (31 Stat. at L. 77, chap. arrangement."

191), as temporary legislation for the Island, In short, it seems to me entirely clear that since the tax is for the benefit of Porto Rico, this resolution cannot be considered a part

and can be abolished by the legislative as of the treaty.

sembly of Porto Rico at will. Per Justices

Brown, Gray, Shiras, and McKenna. I think it equally clear that it cannot be

3. The constitutional provision that “all do treated as a legislative act, though it may

tles, Imposts, and excises shall be uniforma be conceded that under the decisions of this

throughout the United States" (U. 8. Const. court Congress has the power to disregard art. 1, $ 8) does not apply to the tax Imposed

.184

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