ment contains, in addition to certain ultimate and the proceedings on a trial by the court, so | the defendant pleaded that the plaintiff that an exception to a general finding of the ought not to maintain his action "because court upon such statement will bring up a it says that it did not, at any time between question for review, where such agreed state the 1st day of December, 1894, and the 1st facts, other evidential facts from which a ma- day of June, 1895, or at any other time, purterial ultimate fact might be inferred, but chase or become the owner of 120 shares of which is not agreed upon or found. the capital stock of the said First National Bank of Helena, Montana, or any share or shares of the capital stock of said bank, and of this the said defendant puts itself upon [No. 67.] Argued October 29, 30, 1901. Decided Decem- the country," etc. ber 2, 1901. IN ERROR to the United States Circuit cuit to review a judgment affirming a judgment of the District Court of Illinois in favor of defendant in an action to enforce an assessment upon shareholders in a national bank. Affirmed. N ERROR to the United States Circuit See same case below, 39 C. C. A. 231, 98 Fed. 688. Messrs. Delevan A. Holmes and W. E. Mason for plaintiff in error. Mr. John N. Jewett for defendant in error. Mr. Justice Peckham delivered the opinion of the court: Under these pleadings the plaintiff, of course, had the burden of proving ownership of the stock by the defendant. The parties waived a trial by jury and entered into the following stipulation: "It is hereby stipulated and agreed be tween the parties herein that trial by jury in this case be waived; that this cause may be submitted to the Honorable Christian C. Kohlsaat, judge of this court, upon the foregoing statement of facts duly signed by the attorneys of the parties respectively, and that for the purpose of such trial the said statements of facts shall be taken as absolutely true, and shall be taken and considered as all the facts concerning the transactions therein referred to, subject to any and all objections which might properly be urged to the competency or materiality of any part thereof. between the parties was put in evidence, and such statement contained all the evidence in the court for its decision. The court made the case, which was thereupon submitted to no special findings of facts, but made a general finding of the issues for the defendant, embodied in a judgment which was entered as follows: The plaintiff in error brings this case here to review a judgment of the United States circuit court of appeals for the seventh cirUpon the trial before the court without a cuit (39 C. C. A. 231, 98 Fed. 688) affirm-jury, the statement of facts as agreed upon ing a judgment of the district court of Illinois in favor of the defendant. The plaintiff in error is the receiver of the First National Bank of Helena, Montana, and brought this action against the defendant to enforce an assessment of 100 per cent ordered by the Comptroller of the Currency on all owners of shares in that bank. In his declaration the plaintiff, after alleging the organization of the bank, his appointment as receiver, and the assessment by the Comptroller, averred that "the Merchants' Loan & Trust Company, a corporation, at some time between the 1st day of December, 1894, and 1st day of June, 1895 (the exact date being to plaintiff unknown), purchased and became the owner of 120 shares of the capital stock of said First National Bank of Helena, Montana, of the par value of $100 each, and continued to be, and was at the time said bank suspended and ceased to do business, the real owner of the same; but, in order to evade the responsibility imposed by law upon the shareholders in said bank, caused said shares to be placed on the books of said bank in the name of P. C. Peterson, one of its employees, in whose name said shares appeared on the said books at the time of said failure. And the plaintiff avers that the said Peterson was at the time said stock was issued to him as aforesaid, and at the time of the failure of said bank, a person of small means and not responsible financially." The plaintiff demanded judgment for the sum of $12,000, being $100 on each share of the stock in the bank owned (as alleged) by the defendant. As one of several defenses to the action, "Now come the parties by their attorneys, and thereupon a jury is waived by written stipulation, and this cause is submitted to the court for trial, and the court, having heard the evidence and arguments of counsel, and being now fully advised, finds the issues for the defendants, to which finding the plaintiff excepts, and thereupon the plaintiff enters his motion for a new trial, which is heard and overruled, to which ruling the plaintiff excepts. It is thereupon considered and adjudged by the court that the defendants recover of the plaintiff their costs in this behalf, to be taxed, and that execution issue therefor, to which judgment the plaintiff then and there excepts." The statement of facts agreed upon and filed in the court was subsequently allowed as a bill of exceptions. There was no exception taken to any fact contained in this. statement, nor in the progress of the trial, nor was there any request to find other spe cial facts. The only exception taken was to the general finding of the court in favor of the defendant. From this agreed statement of facts it appears that on April 15, 1893, the defendant loaned to one Ashby of Helena, Montana, $12,000, and took his note in the usual form payable on August 16, 1893. As collateral security for the payment of the note at maturity, Ashby signed in blank and delivered to the defendant a certificate rep-cates for 150 shares of the capital stock of resenting 150 shares of the capital stock of the Helena National Bank were originally the Helena National Bank of Helena, Mon- held, except as the conditions may have been tana. The note taken for the loan was of changed by the facts hereinbefore stated, but the kind usually termed a collateral note, that neither the defendant nor the said Peand authorized the sale of the collateral de- terson ever took any part in the manageposited as security therefor upon default ment of either of said banks, or participated in the payment of the note. At the time of in the administration of their affairs." The the loan Ashby was president of the Helena "facts hereinbefore stated" consisted, not National Bank. On July 26, 1893, Ashby only of those which have been given above, made a general assignment for the benefit but also of correspondence between the offiof his creditors, and among the property as- cers of defendant and the officers of the Helesigned by him was the certificate for 150 na National Bank and the assignee of the shares of the capital stock of the Helena Na- pledgeor Ashby, which is set out in the tional Bank, described by the assignor as agreed statement. then held by the Merchants' Loan & Trust This statement has been referred to for Company in pledge. About the date of the the purpose of understanding the materialiassignment Ashby resigned the presidency ty of certain facts found or agreed upon, the of the Helena National Bank. In the sum-failure to do which prevents our use of the mer of 1894 the Ashby note still remained statement in the decision of the case. The unpaid, and the certificate of stock re-contention of the plaintiff herein is that the mained in the possession of the defendant, substitution of the original stock for that of no transfer thereof being made upon the the First National Bank of Helena was made books of the bank. Later in the year 1894 without the consent of the pledgeor, and the parties in interest in Helena proposed amounted to a conversion of the stock, and to consolidate the Helena National Bank made the defendant, when it took the shares with the First National Bank of Helena, and of stock in the consolidated bank, the ownthe consent of a sufficient number of share-er thereof, and rendered it liable to assessholders in the bank was obtained before the defendant was asked to consent to the transfer of the shares held by it in pledge, on the same terms upon which the owners of shares in the Helena National Bank had agreed to a consolidation of the two banks, by taking shares in the First National Bank of Hele na in exchange for their shares in the Helena National Bank, at the rate of 80 per cent of new shares in exchange for the old. In response to such request the defendant sent the certificates for the 150 shares in the Helena National Bank to the president of that bank. In exchange therefor certificates for 120 shares of stock in the First National Bank of Helena were sent to the defendant, the shares being entered, at request of defendant, on the books of the bank and in the certificates, in the name of P. C. Peterson, an employee of the defendant. Subsequent-name of the defendant, the case would be ly, the First National Bank of Helena went into the hands of a receiver, who found the 120 shares standing on its books in the name of Peterson. The receiver, after the assessment was made, commenced this actioned. 576, 20 Sup. Ct. Rep. 465. against the defendant trust company, alleging that it was the real owner of the stock, and that it stood in the name of Peterson for the purpose of enabling the defendant to evade liability as owner. The note remains unpaid, although two small payments on account have been made by the assignee of the maker since the assignment. It is part of the statement agreed upon that the original shares of stock were placed in defendant's possession simply as a pledge or collateral security for the payment of the note made by Ashby, and the certificates which have been substituted for them, as already mentioned, "have ever since been and now are in the possession and control of the defendant, and are held by it in the same way and for the same purpose as the certifi ment as such owner, notwithstanding the fact that the stock was entered and remained on the books of the bank and in the certificate issued by the bank, in the name of Peterson, as owner. Aside from the question whether the defendant had or had not the right as pledgee of the stock in the Helena National Bank to cause the same to be transferred into shares of the other bank after a majority of the stockholders had consented to a consolidation, it would seem that if Ashby, the owner, had himself consented to the arrangement, or subsequently ratified it, the substituted stock would remain under the same terms and conditions as attached to the original stock, and it would be simply a pledge to, and not an ownership of stock by, the defendant; and as the stock never stood in the governed by that of Pauly v. State Loan & The difficulty we meet, which prevents the decision of the case from resting on the statement of facts, lies in the omission therefrom of any finding or agreement upon the question of fact whether the pledgeor had or had not consented to the change; and instead of any such finding or agreement there is placed in the statement certain correspondence from which, together with other facts stated, an inference of consent or perhaps ratification might be drawn, but is not found or agreed upon, thus leaving the ultimate fact of consent or nonconsent a matter of inference, and an inference of fact, and not of law; and this is a material fact arising upon the statement as agreed upon. Neither is there any finding upon the question of the consent of the assignee of the pledgeor to the substitution of the stock, or upon the question of ratification by him. | a general finding of facts and a judgment 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 law which the court could review. In that case there was no agreed statement of facts. Here, although there is a general finding in favor of the defendant, yet there is a statement of facts which contains certain ultimate facts, together with certain other facts evidential in their nature from which an important and ulitmate fact might be inagreement or finding whatever. In such case it would not be proper to regard the agreed statement as a sufficient finding of ultimate facts within the statute. The result of the decisions under the statutes providing for a waiver of trial by jury, and the proceedings on a trial by the court (Rev. Stat. §§ 649, 700) is that when there are special findings they must be findings of what are termed ultimate facts, and not the evidence from which such facts might be but are not found. If, therefore, an agreed 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 such statement there are other facts of an evidential character only, from which a material ultimate fact might be inferred, but which is not agreed upon or found, we cannot find it, and we cannot decide the case on the ultimate facts agreed upon without reference to such other facts. In such case we must be limited to the general finding by the court. We are so limited because the agreed statement is not a compliance with the statute. As to what is necessary in special findings or in an agreed statement of facts, the authorities are decisive. It is held that upon a trial by the court, if special findings are made, they must be not a mere report of the evidence, but a finding of those ultimate facts on which the law must determine the rights of the parties; and if the finding of facts be general, only such rulings of the court in the progress of the trial can be reviewed as are presented by a bill of exceptions; and in such case the bill cannot be used to bring up the whole testimony for review, any more than in a trial by jury. Norris v. Jackson, 9 Wall. 125, 19 L. ed. 608. In this case the finding is general, and, strictly construing the statute, the only questions which would be reviewable would be those questions which arose during the progress of the trial, and which were presented by bill of exceptions. It has, however, been held that where there was an agreed statement of facts submitted to the trial court and upon which its judgment was founded, such agreed statement would be taken as an equivalent of a special finding of facts. Wayne County Supers. v. Kennicott, 103 U. S. 554, 26 L. ed. 486. But as such equivalent, there must of course be a finding or an agreement upon all ultimate facts, and the statement must not merely present evidence from which such facts or any of them may be inferred. An exception to a general finding of the court on a trial without a jury brings up no question for review. The finding is conclusive, and there must be exceptions taken to the rulings of the court during the trial in order to permit a review thereof. Mercantile Mut. Ins. Co. v. Folsom, 18 Wall. 237, 21 L. ed. 827. In Martinton v. Fairbanks, 112 U. S. 670, 28 L. ed. 862, 5 Sup. Ct. Rep. 321, which was a trial before the judge without the intervention of a jury, and where there was only In Raimond v. Terrebonne Parish, 132 U. S. 192, 33 L. ed. 309, 10 Sup. Ct. Rep. 57, it was said that the agreed statement of facts by the parties or a finding of facts by the circuit court must state the ultimate facts of the case, presenting questions of law only, and not be a recital of evidence or of circumstances which may tend to prove the ultimate facts, or from which they may be inferred. It In Glenn v. Fant, 134 U. S. 398, 33 L. ed. 969, 10 Sup. Ct. Rep. 583, there was a stipulation that the case should be heard upon an agreed statement of facts annexed, with leave to refer to exhibits filed therewith. was held that the stipulation could not be regarded as taking the place of a special verdict or of a special finding of facts, and that the court had no jurisdiction to determine the question of law arising thereon. It is true there was no bill of exceptions in that case, but the bill in this case presents no exception taken during the progress of the trial, and only contains an exception to the conclusion of the trial court in ordering judgment upon the issues in favor of the defendant. Lehnen v. Dickson, 148 U. S. 71, 37 L. ed. 373, 13 Sup. Ct. Rep. 481, decided that any mere recital of the testimony, whether in the opinion of the court or in a bill of excep tions, could not be deemed a special finding of facts within the scope of the statute; and if there were a general finding and no agreed statement of facts, the court must accept that finding as conclusive, and limit its inquiry to the sufficiency of the complaint and to the rulings, if any be preserved on questions of law arising during the trial. The court, in the opinion written by Mr. Justice Brewer, said: "But the burden of the statute is not thrown off simply because the witnesses do not contradict each other, and there is no conflict in the testimony. It may be an easy thing in one case for this court, when the testimony consists simply of deeds, mortgages, or other written instruments, to make a satisfactory finding of the facts; and in another it may be difficult when the testimony is largely in parol and the witnesses directly contradict each other. But the rule of the statute is of universal application. It is not relaxed in one case because cided December 2, 1901. of the ease in determining the facts, or rig- | Argued December 17, 18, 19, 20, 1900. Deorously enforced in another because of the difficulty in such determination. The duty of finding the facts is placed upon the trial We have no authority, to examine the testimony in any case, and from it make a finding of the ultimate facts." court. In St. Louis v. Western U. Teleg. Co. 166 U. S. 388, 41 L. ed. 1044, 17 Sup. Ct. Rep. 608, it was held that the special finding of facts referred to in the acts allowing parties to submit issues of fact in civil cases to be tried and determined by the court is not a mere report of the evidence, but a finding of those ultimate facts upon which the law must determine the rights of the parties; 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 bill of exceptions; and in such case the bill cannot be used to bring up the whole testimony for review, any more than in a trial by jury. We now hold, in accordance with the authorities, that an agreed statement of facts which is so defective as to present, in addition to certain ultimate facts, other and evidential facts upon which a material ultimate fact might have been, but which was not, agreed upon or found, cannot be regarded even as a substantial compliance with the statute. Being concluded by the general finding of the issues in favor of defendant, there is no error in the record, and the judgment must be affirmed. (183 U. S. 176) Duties THE DIAMOND RINGS. N ERROR to the District Court of the United States for the Northern District of Illinois to review a decree of forfeiture and sale of articles alleged to have been imported without payment of duties. versed, and cause remanded, with directions to quash the information. Re The facts are stated in the opinion. Messrs. Lawrence Harmon and Charles H. Aldrich for plaintiff in error, Emil J. Pepke. Attorney General Griggs for defendant in error, the United States. *Mr. Chief Justice Fuller delivered the opinion of the court: Emil J. Pepke, a citizen of the United States and of the state of North Dakota, enlisted in the First Regiment of the North Dakota United States Volunteer Infantry, and was assigned for duty with his regiment in the island of Luzon, in the Philippine islands, and continued in the military service of the United States until the regi. ment was ordered to return, and, on arriv ing at San Francisco, was discharged September 25, 1899. He brought with him from Luzon four. teen diamond rings, which he had there purchased, or acquired through a loan, subsequent to the ratification of the treaty of peace between the United States and Spain, February 6, 1899, and the proclamation thereof by the President of the United States, April 11, 1899. In May 1900, in Chicago, these rings were importation from Philippine 18- seized by a customs officer as having been imlands what is foreign country force ported contrary to law, without entry, or of Senate resolution explaining intent of declaration, or payment of duties, and an ratification of treaty effect of insur-information was filed to enforce the forfeit rection on title of United States to Phil ippine Islands. 1. Diamond rings brought into the United States from the island of Luzon, in the PhilIppine Islands, subsequent to the proclamation of the ratification of the treaty of peace between the United States and Spain, are not Imported from a foreign country within the meaning of the tariff act of July 24, 1897, providing for duties on articles so imported. 2. The meaning of the treaty of peace with Spain by which the Philippine islands were ceded to the United States cannot be controlled by a Senate resolution adopted, after the ratification of the treaty, by a vote of less than two thirds of a quorum, that it was not intended to incorporate the inhabitants of the Philippines into citizenship of the United States, or to permanently annex those islands. The legal title and possession of the United States to the Philippine islands, derived from the cession in the treaty of peace with Spain, whose sovereignty and possession under claim of title had existed for many years prior to the war with the United States, is unaffected by the continuance in Insurrection against the United States of those who had been previously in Insurrection against Spain. [No. 158.] ure thereof. To this Pepke filed a plea setting up the facts, and claiming that the rings were not subject to customs duties; the plea was held insufficient; forfeiture and sale were decreed; and this writ of error was prosecuted. The tariff act of July 24, 1897 (30 Stat. at L. 151, chap. 11), in regulation of commerce with foreign nations, levied duties "upon all articles imported from foreign countries." Were these rings, acquired by this soldier after the ratification of the treaty was proclaimed, when brought by him from Luzon to California, on his return with his regiment to be discharged, imported from a foreign country? This question has already been answered in the negative, in respect of Porto Rico, in De Lima v. Bidwell, 182 U. S. 1, 45 L. ed. 1041, 21 Sup. Ct. Rep. 743, and unless the cases can be distinguished, which we are of opinion they cannot be in this particular, that decision is controlling. The Philippines, like Porto Rico, became, by virtue of the treaty, ceded conquered territory, or territory ceded by way of indemni *179 ty. The territory ceased to be situated as Castine was when occupied by the British forces in the war of 1812, or as Tampico was when occupied by the troops of the United States during the Mexican war, "cases of temporary possession of territory by lawful and regular governments at war with the country of which the territory so possessed was part." Thorington v. Smith, 8 Wall. 10, 19 L. ed. 363. The Philippines were not simply occupied, but acquired, and having been granted and delivered to the United States, by their former master, were no longer under the sovereignty of any foreign nation. In Cross v. Harrison, 16 How. 164, 14 L. ed. 889, the question was whether goods imported from a foreign country into California after the cession were subject to our tariff laws, and this court held that they were. ruling as to the Philippines. By the 3d article of the treaty Spain ceded to the United States "the archipelago known as the Philippine islands,' and the United States agreed to pay Spain the sum of $20,000,000 within three months. The treaty was rati fied; Congress appropriated the money; the ratification was proclaimed. The treatymaking power, the executive power, the legis lative power, concurred in the completion of the transaction. The Philippines thereby ceased, in the language of the treaty, "to be Spanish." Ceasing to be Spanish, they ceased to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established. The result 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 act regulated commerce with foreign nations, and Porto Rico had ceased to be within that category; nor could territory be foreign and domestic at the same time. This But it is said that the case of the Philippines is to be distinguished from that of Porto Rico because on February 14, 1899, after the ratification of the treaty, the Senate resolved, as given in the margin,t that it was not intended to incorporate the*in-* habitants of the Philippines into citizenship of the United States, nor to permanently annex those islands. fore us. Among other things it was there said: "The theory that a country remains foreign with respect to the tariff laws until Congress has acted by embracing it within the 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 beIceded to the United States. 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 territory; that laws may be enacted and enforced as to the intention of the Senate in ratifyby 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 inlected, 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 "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, until Congress enacts otherwise, it still remains a foreign country. To hold that this can be done as matter of law we deem to be pure judicial legislation. We find no warrant for it in the Constitution or in the powers conferred upon this court. It is true the nonaction of Congress may occasion a temporary inconvenience; but it does not follow that courts of justice are authorized to remedy it by inverting the ordinary meaning of words." No reason is perceived for any different Congress assembled, That by the ratification of the treaty of peace with Spain it is not intended to Incorporate the inhabitants of the Philippine is it intended to permanently annex sald isislands into citizenship of the United States, nor lands as an integral part of the territory of the United States; but it is the intention of the United States to establish on said islands a government suitable to the wants and conditions of the inhabitants of said islands to prepare to make such disposition of said islands as will them for local self-government, and in due time best promote the Interests of the United States and the inhabitants of sald islands." Cong. Rec., 55th Cong. 3d Sess. vol. 32, p. 1847. |