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It is further contended that a distinction exists in that, while complete possession of Porto Rico was taken by the United States, this was not so as to the Philippines, because of the armed resistance of the native inhabitants to a greater or less extent. We must decline to assume that the government wishes thus to disparage the title of the United States, or to place itself in the position of waging a war of conquest. The sovereignty of Spain over the Philippines and possession o: claim of title had existed for a long series of years prior to the war with the United States. The fact that there were insurrections against her, or that uncivilized tribes may have defied her will, did not affect the validity of her title. She granted the islands to the United States, - and the grantee in accepting them took noth:ing less than the whole grant. * “If those in insurrection against Spain continued in insurrection against the United States, the legal title and possession of the latter remained unaffected. We do not understand that it is claimed that in carrying on the pending hostilities the government is seeking to subjugate the people of a foreign country, but, on the contrary, that it is preserving order and supressing insurrection in the territory of the nited States. It follows that the possession of the United States is adequate possession under legal title, and this cannot be asserted for one purpose and denied for another. We dismiss the suggested distinction as untenable. But it is sought to detract from the weight of the ruling in De Lima v. Bidwell because one of the five justices concurring in the judgment in that case concurred in the judgment in Downes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770. In De Lima v. Bidwell Porto Rico was held not to be a foreign country after the cession, and that a prior act, exclusively applicable to foreign countries became inapplicable. In Downes v. Bidwell the conclusion of a majority of the court was that an act of Congress levying duties on goods imported from Porto Rico into New York, not in conformity with the provisions of the Constitution in respect to the imposition of duties, imposts, and excises, was valid. Four of the members of the court dissented from and five concurred, though not on the same grounds, in this conclusion. The justice who delivered the opinion in De Lima's Case was one of the majority, and was of opinion that although by the cession Porto Rico ceased to be a foreign country, and became a territory of the United States and domestic, yet that it was merely “appurtenant” territory, and “not a part of the United States within the revenue clauses of the Constitution.” This view placed the territory, though not foreign, outside of the restrictions applicable to interstate commerce, and treated the power of Congress, when affirmatively exercised over a territory, situated as supposed, as uncontrolled by the provisions of the Constitution in respect of national taxation.

The distinction was drawn between a special act in respect of the particular country and on a general and prior act only applicable to: *countries foreign to ours in every sense. The * latter was obliged to conform to the rule of uniformity, which was wholly disregarded in the former. The ruling in the Case of De Lima remained unaffected, and controls that under consideration. And this is so notwithstanding four members of the majority in the De Lima Case were of opinion that Porto Rico did not become by the cession subjected to the exercise of governmental power in the levy of duties unrestricted by constitutional limitations. Decree reversed and cause remanded, with directions to quash the information.

Mr. Justice Gray, Mr. Justice Shiras, Mr. Justice White and Mr. Justice MoKenna dissented, for the reasons stated in their opinions in De Lima v. Bidwell, 182 U. S. 1, 200–220, 45 L. ed. 1041, 1057–1065, 21 Sup. Ct. Rep. 743, in Dooley v. United States, 182 U. S. 222, 236–243, 45 L. ed. 1074, 1083–1085, 21 Sup. Ct. Rep. 762, and in Downes v. Bidwell, 182 U. S. 244, 287–347, #. ed. 1088, 1106–1129, 21 Sup. Ct. Rep.

Mr. Justice Brown, concurring: I concur in the conclusion of the court in this case, and in the reasons given therefor in the opinion of the Chief Justice. The case is distinguishable from De Lima v. Bidwell in but one particular, viz., the Senate resolution of February 6, 1899. With regard to this, I would say that in my view the case would not be essentially different if this resolution had been adopted by a unanimous vote of the Senate. To be efficacious such resolution must be considered either (1) as an amendment to the treaty, or (2), as a legislative act qualifying or modifying the treaty. It is neither. It cannot be regarded as part of the treaty, since it received neither the approval of the President nor the consent of the other contracting power. A treaty in its legal sense is defined by Bouvier as “a compact made between two or more independent nations with a view to the public welfare” (2 Law Dict. 1136), and by Webster as “an agreement, league, or contract between two or more nations or sovereigns, formally signed by commissioners properly authorized, and solemnly ratified by the several sovereigns or the supreme power of each state.” In its essence it is a contract. It differs from an ordinary contract only in be. ing an agreement between independent states instead of private parties. Foster v. Neilson, 2 Pet. 253, 314, 7 L. ed. 415, 435; Head Money Cases, 112 U. S. 580, sub nom. Edye v. Robertson, 28 L. ed. 798, 5 Sup. Ct. Rep. 247. By the Constitution (art. 2, § 2) the: President “shall have power, by and with the: "advice and consent of the Senate, to make" treaties, provided two thirds of the Senators

present concur.” Obviously the treaty must contain the whole contract between the par

ties, and the power of the Senate is limited to a ratification of such terms as have already been agreed upon between the President, acting for the United States, and the commissioners of the other contracting É. The Senate has no right to ratify he treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratification, or make such ratification conditional upon the adoption of amendments to the treaty. If, for instance, the treaty with Spain, had contained a provision instating the inhabitants of the Philippines as citizens of the United States, the Senate might have refused to ratify it until this provision was stricken out. But it could not, in my opinion, ratify the treaty and then adopt a resolution declaring it not to be its intention to admit the inhabitants of the Philippine islands to the privileges of citizenship of the United States. Such resolution would be inoperative as an amendment to the treaty, since it had not received the assent of the President or the Spanish commissioners. Allusion was made to this question in the New York Indians v. United States, 170 U. S. 1, 21, 42 L. ed. 927, 934, 18 Sup. Ct. Rep. 531, wherein it appeared that, when a treaty with certain Indian tribes was laid before the Senate for ratification, several articles were stricken out, several others amended, a new article added, and a proviso adopted that the treaty should have no force or effect whatever until the amendment had been submitted to the tribes, and they had given their free and voluntary assent thereto. This resolution, however, was not found in the original or in the published copy of the treaty, or in the proclamation of the President, which contained the treaty without the amendments. With reference to this the court observed: “The power to make treaties is vested by the Constitution in the President and Senate, and, while this proviso was adopted by the Senate, there is no evidence that it ever received the sanction or approval of the President. It cannot be considered as a legislative act, since the pow

or modify a treaty with a foreign state. This was not done. The resolution in question was introduced as a joint resolution, but it never received the assent of the House of Representatives or the signature of the President. While a joint, resolution, when approved by the President, or, being disapproved, is passed by two thirds of each House, has the *: of a law (Const. art. 1, § 7), no such effect can be given to a resolution of either House acting independently of the other. Indeed, the above clause expressly requires concurrent action upon a resolution “before the same shall take effect.” This question was considered by Mr. Attorney General Cushing in his opinion on certain, Resolutions, of Congress, (6 Qps. Atty. Gen. 680), in which he held that while joint resolutions of Congress are not distinguishable from bills, and have the effect of law, separate resolutions of either House of Congress, except in matters appertaining to their own parliamentary rights, have no legal effect to constrain the action of the President or heads of departments. The whole subject is there elaborately discussed. In any view taken of this resolution it a pears to me that it can be considered only as expressing the individual views of the Senators voting upon it. I have no doubt the treaty might haveg provided, as did the act of Congress annex-E ing Hawaii, that the existing customs"rela-tions between the Spanish possessions ceded by the treaty and the United States should remain unchanged until legislation had been had upon the subject; but in the absence of such provision the case is clearly controlled by that of De Lima v. Bidwell.

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Constitutional law—Foraker act—duty on

• er to legislate is vested in the President, exports—imports into Porto Rico.

* Senate, and House of Representatives. There

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7 is something, too, which shocks the "con- |1. The to imposed upon goods imported into

science in the idea that a treaty can be put forth as embodying the terms of an arrangement with a foreign power or an Indian tribe, a material provision of which is unknown to one of the contracting parties, and is kept in the background to be used by the other only when the exigencies of a particular case may demand it. The proviso never appears to have been called to the attention of the tribes, who would naturally assume that the treaty embodied in the presidential proclamation contained all the terms of the arrangement.” In short, it seems to me entirely clear that this resolution cannot be considered a part of the treaty. I think it equally clear that it cannot be treated as a legislative act, though it may be conceded that under the decisions of this court Congress has the power to disregard

Porto Rico from New York under the provislons of the Foraker act of April 12, 1900 (31 Stat. at L. 77, chap. 191), is not a tax or duty on articles exported from the United States within the meaning of U. S. Const. art. 1, $ 9, declaring that no tax or duty shall be laid on articles exported from any state, since the goods are not exported to a foreign country. 2. A duty on imports to Porto Rico, within the power of Congress under U. S. Const. art. 1, § 8, “to lay and collect taxes, duties, imposts, and excises,” is imposed by the Foraker act of April 12, 1900 (31 Stat. at L. 77, chap. 191), as temporary legislation for the Island, since the tax is for the benefit of Porto Rico, and can be abolished by the legislative assembly of Porto Rico at will. Per Justices Brown, Gray, Shiras, and McKenna. 8. The constitutional provision that “all duoties, imposts, and excises shall be uniform throughout the United States" (U. S. Const. art. 1, § 8) does not apply to the tax imposed

by the Foraker act of April 12, 1900 (81 Stat. at L. 77, chap. 191), upon goods imported into Porto Rico from New York. Per Justice White.

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Argued January 8, 9, 10, 11, 1901. Decided
December 2, 1901.

N ERROR to the Circuit Court of the

United States for the Southern District of New York to review a dismissal of a petition on demurrer in an action against the United States to recover duties paid under rotest upon imports into Porto Rico from §. York. Affirmed.

Statement by Mr. Justice Brown: * * This was an action begun in the circuit

court as a court of claims by the firm of Dooley, Smith, & Co., to recover duties exacted of them and paid under protest to the collector of the port of San Juan, Porto Rico, upon merchandise imported into that port from the port of New York after May 1, 1900, and since the Foraker act. This act requires all merchandise “coming into Porto Rico from the United States” to be “entered at the several ports of entry upon payment of fifteen per centum of the duties which are required to be levied, collected, and paid upon like articles of merchandise imported from foreign countries.” [31 Stat. at L. 77, chap. 191, § 3.]

A demurrer was interposed by the district attorney, upon the ground that the court had no jurisdiction of the subject of the action, and also that the complaint did not state facts sufficient to constitute a cause of action. The demurrer to the complaint for insufficiency was sustained, and the petition dismissed. l

Messrs. Henry M. Ward, John G. Carlisle, William Edmond Curtis, William G. Choate, and Joseph Larocque, Jr., for plaintiffs in error.

Solicitor General Richards and Attorney General Griggs for defendant in error.

Mr. Justice Brown delivered the opinion to of the court: : This case raises the question of the consti• tutionality of the"Foraker act, so far as it fixes the duties to be paid upon merchandise imported into Porto Rico from the port of New York. The validity of this requirement is attacked upon the ground of its violation of that clause of the Constitution (art. 1, § 9) declaring that “no tax or duty shall be laid on articles exported from any state.” While the words “import” and “export” are sometimes used to denote goods passing from one state to another, the word “import,” in connection with the provision of the Constitution that “no state shall levy any imo or duties on imports or exports,” was eld in Woodruff v. Parham, 8 Wall. 123, 19 L. ed. 382, to apply only to articles imported from foreign countries into the United States. That was an action to recover a tax im

posed by the city of Mobile for municipal purposes, upon sales at auction. Defendants, who were auctioneers, received in the course of their business for themselves, or as consignees or agents for others, large amounts of fo and merchandise the products of other states than Alabama, and sold the same in Mobile to purchasers in unbroken and original packages. The sureme court of Alabama decided the case in avor of the tax, and the case came here for review. The question, as stated by Mr. Justice Miller, was “whether merchandise brought from other states and sold, under the circumstances stated, comes within the prohibition of the Federal Constitution that no state shall, without the consent of Congress, levy any imposts or duties on imports or exports.” Defendants relied largely upon a dictum in Brown v. Maryland, 12 Wheat. 419, 6 L. ed.: 678, to the effect that the principles laid down in that case as to the nontaxability of imports from foreign countries might perhaps apply, equally to importations from a sister state. In discussing this question, and particularly of the power of Congress to levy and collect taxes, duties, imposts, and excises, Mr. Justice Miller observed: “Is the word ‘impost,” here used, intended to confer upon Congress a distinct power to levy a tax upon all goods or merchandise carried from one state into another? Or is the power: limited to duties on foreign imports? If the: "former be intended, then the power con-o ferred is curiously rendered nugatory by the subsequent clause of the 9th section, which declares that no tax shall be laid on articles exported from any state, for no article can be imported from one state into another which is not at the same time exported from the former. But if we give to the word ‘imposts' as used in the first-mentioned clause the definition of Chief Justice Marshall, and to the word ‘export the correonding idea of something carried out of the United States, we have, in the power to lay duties on imports from abroad and the prohibition to lay such duties on exports to other countries, the power and its limitations concerning imposts.” “It is not too much to say that, so far as our research has extended, neither the word ‘export,’ ‘import,” or ‘impost’ is to be found in the discussion on this subject, as they have come down to us from that time, in reference to any other than foreign commerce, without some special form of words to show that foreign commerce is not meant. - . Whether we look, then, to the terms of the clause of the Constitution in question, or to its relation to the other parts of that instrument, or to the history of its formation and adoption, or to the comments of the eminent men who took part in those transactions, we are forced to the conclusion that no intention existed to prohibit by this clause” (that no state shall, without the consent of Congress, levy any impost or duty

upon any export or import), “the right of one state to tax articles brought into it from

another.” This definition of the word “impost” was afterwards approved in Brown v. Houston, 114 U. S. 623, 29 L. ed. 257, 5 Sup. Ct. Rep. 1091. See also Fairbank v. United States, 181 U. S. 283, 45 L. ed. 862, 21 Sup. Ct. Rep. 648. It follows, and is the logical sequence of the case of Woodruff v. Parham, that the word “export” should be given a correlative meaning, and applied only to goods exported to a foreign country. Muller v. Baldwin, L. R. 9 Q. B. 457. If, then, Porto Rico be no longer a foreign country under the Dingley act, as was held by a majority of this court in De Lima v. Bidwell, 182 U. S. 1, 45 L. ed. 1041, 21 Sup. Ct. Rep. 743, and Dooley v. United States, 182 U. S. 222, 45 L. ed. 1074, 21 Sup. Ct. Rep. 762, we find we it impossible to say that goods carried from : New York to Porto Rico can be considered • as “exported” from New" York within the meaning of that clause of the Constitution. If they are neither exports nor imports, they are still liable to be taxed by Congress under the ample and comprehensive authority conferred by the Constitution “to lay and collect taxes, duties, imposts, and excises.” Art. 1, § 8. In another view, however, the case presented by the record is whether a duty laid by Congress upon goods arriving at Porto Rico from New York is a duty upon an exort from New York, or upon an import to É.i. Rico. The fact that the duty is exacted upon the arrival of the goods at San Juan certainly creates a presumption in favor of the latter theory. At the same time it is possible that it may also be a duty upon an export. The mere fact that the duty is not laid at the port of departure is by no means decisive against its being such. It is too clear for argument that, if vessels bound for a foreign country were compelled to stop at an intermediate port and pay into the Treasury of the United States a duty upon their cargoes, such duty would be a tax upon an export, and the place of its exaction would be of little significance. The manner in which and the place at which the tax is levied are of minor consequence. Thus, in Brown v. Maryland, 12. Wheat. 419, 6 L. ed. 678, it was held that an act of a state legislature requiring importers of foreign goods to take out a license was a violation of the Constitution declaring that no state shall, without the consent of Congress, lay any impost or duty on imports or exports; and in the recent case of Fairbank v. United States, 181 U. S. 283, 45 L. ed. 862, 21 Sup. Ct. Rep. 648, we held that a discriminating stamp tax upon bills of lading covering goods to be carried to a foreign country was a tax upon exports within the same provision of the Constitution. One thing, however, is entirely clear. The tax in question was imposed upon goods imported into Porto Rico, since it was exacted by the collector of the port of San Juan atter the arrival of the goods within the limits of that port. From this moment the duties became payable as upon imported merchandise. United States v. Vowell, 5

Cranch, 368, 3 L. ed. 128; Arnold v. United States, 9 Cranch, 104, 3 L. ed. 671; Meredith v. United States, 13 Pet. 486, 10 L. ed. 258. Now, while an import into one port almost necessarily involves a prior export: from another, still, in determining the char-> acter" of the tax imposed, it is important to" consider whether the duty be laid for the purpose of adding to the revenues of the country from which the export takes place, or for the benefit of the territory into which they are imported. By the 3d section of the Foraker act, imposing duties upon merchandise coming into Porto Rico from the United States, it is declared that “whenever the legislative assembly of Porto Rico shall have enacted and put into operation a system of local taxation to meet the necessities of the government of Porto Rico, by this act established, and shall by resolution duly passed so notify the President, he shall make proclamation thereof, and thereupon all tariff duties on merchandise and articles going into Porto Rico from the United States or coming into the United States from Porto Rico shall cease, and from and after such date all such merchandise and articles shall be entered at the several ports of entry free of duty.” And by § 4, “the duties and taxes collected in Porto Rico in pursuance of this act, less the cost of collecting the same and the gross amount of all collections of duties and taxes in the United States upon articles of merchandise coming from Porto Rico, shall not be covered into the general fund of the Treasury, but shall be held as a separate fund, and shall be placed at the disposal of the President to be used for the government and benefit of Porto Rico until the government of Porto Rico, herein provided for, shall have been organized, when all moneys theretofore collected under the provisions hereof, then unexpendcd, shall be transferred to the local treasury of Porto Rico.” Now, there can be no doubt whatever that if the legislative assembly of Porto Rico should, with the consent of Congress, lay a tax upon goods arriving from ports of the United States, such tax, if legally imposed, would be a duty upon imports to Porto Rico, and not upon exports from the United States; and we think the same result must follow if the duty be laid by Congress in the interest and for the benefit of Porto Rico. The truth is that, in imposing the duty as a temporary expedient, with a proviso that it may be abolished by the legislative assembly of Porto Rico at its will, Congress thereby shows that it is undertak-t: ing to legislate for the island for the time: being" and only until the local government" is put into operation. The mere fact that the duty passes through the hands of the revenue officers of the United States is immaterial, in view of the requirement that it shall not be covered into the general fund of the Treasury, but be held as a separate fund for the government and benefit of Porto Rico. The action is really correlative to that of Downes v. Bidwell, 182 U. S. 244, 45 L. ed.

1088, 21 Sup. Ct. Rep. 770, in which we held that Congress could lawfully impose a duty upon imports from Porto Rico, notwithstanding the provision of the Constitution that all duties, imposts, and excises shall be uniform throughout the United States. It is true that this conclusion was reached by a majority of the court by different processes of reasoning, but it is none the less true that in the conclusion that certain provisions of the Constitution did apply to Porto Rico, and that certain others did not, there was no difference of opinion. It is not intended by this opinion to intimate that Congress may lay an export tax upon merchandise carried from one state to another. While this does not seem to be forbidden by the express words of the Constitution, it would extremely difficult, if not impossible, to lay such a tax without a violation of the 1st paragraph of art. 1, § 8, that “all duties, imposts, and excises shall be uniform throughout the United States.” There is a wide difference between the full and paramount power of Congress in legislating for a territory in the condition of Porto Rico and its power with respect to the states, which is merely incidental to its right to regulate interstate commerce. The question, however, is not involved in this case, and we do not desire to express an opinion upon it. These duties were properly collected, and the action of the Circuit Court in sustaining the demurrer to the complaint was correct, and it is therefore affirmed.

Mr. Justice White concurring: While agreeing to the judgment of affirmor ance and in substance, concurring in the 3 opinion of the court just announced, by 7 which the affirmance is sustained, I propose to summarize in my own language the reasoning which the opinion embodies as it is by me understood. In my judgment the opinion of the court in the cases of De Lima v. Bidwell, 182 U. S. 1, 45 L. ed. 1041, 21 Sup. Ct. Rep. 743, and Dooley v. United States, 182 U. S. 222, 45 L. ed. 1074, 21 Sup. Ct. Rep. 762, decided in the last term, and that just announced in the case of The Diamond Rings, 183 U. S. 176, ante, 59, 22 Sup. Ct. Rep. 59, as well as the opinions of the majority of the members of the court in Dournes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770, also decided at the last term, when considered in connection with the previous adjudications of this court, are conclusive in favor of the affirmance of the judgment in this cause. The question is whether a tax imposed by authority of the act of April 12, 1900 (31 Stat. at L. 77, chap. 191), in Porto Rico, on merchandise coming into that island from the United States, is repugnant to clause 5, § 0, of article 1 of the Constitution of the United States, which provides that “no tax or duty shall be laid on articles exported from any state.”. Is the tax here as: sailed an export tax within the meaning of the Constitution? If it is, the judgment sustaining it should be reversed; if it is not, affirmance is required. 22 S. C.—5.

In Woodruff v. Parham (1868) 8 Wall. 123, 19 L. ed. 382, the validity of a tax on auction sales levied by the city of Mobile pursuant to authority conferred by the laws of the state of Alabama was called in question. One of the contentions was that, as the tax was on sales at auction of goods in the original packages brought into the state of Alabama from other states, it was repugnant to that clause of § 9 of article 1 of the Constitution, which forbids any state, without the consent of Congress, from laying imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws. In approaching the consideration of the question thus presented, the court, in its opinion, which was announced by Mr. Justice Miller, said (p. 131, L. ed. 384):

“The words “imposts,’ ‘imports,’ and ‘exports' are frequently used in the Constitution. They have a necessary co-relation, and when we have a clear idea of what either word means in any particular connection in which it may be found, we have ones of the most satisfactory tests of its defini-3 tion in other parts of the same "instrument." - - Leaving, then, for a moment, the clause of the Constitution under consideration” (forbidding a state to lay an import or an export tax), “we find the first use of these co-relative terms in that clause of the 8th section of the lst article, which begins the enumeration of the powers confided to Congress. The Congress shall have power to levy and collect taxes, duties, imposts, and excises. But all duties, imposts, and excises shall be uniform throughout the United States.’ Is the word ‘impost,' here used, intended to confer upon Congress a distinct power to levy a tax upon all goods or merchandise carried from one state into another? or is the power limited to duties on foreign imports? If the former be intended, then the power conferred is curiously rendered nugatory by the subsequent clause of the 9th section, which declares that no tax shall be laid on articles exported from any state, for no article can be imported from one state into another, which is not, at the same time, exported from the former. But if we give to the word ‘imposts,’ as used in the first-mentioned clause, the definition of Chief Justice Marshall, and to the word ‘export' the corresponding idea of something carried out of the United States, we have, in the power to lay duties on imports from abroad, and the prohibition to lay such duties on exports to other countries, the power and its limitations ‘...."; imposts.”

The opinion then proceeded to elaborately consider the meaning of the words “imports,” “exports,” and “imposts” in the Constitution, with reference to the powers of Congress, and concluded that they related only to the bringing in of goods from a country foreign to the United States, or the taking out of goods from the United States to such a country. From this conclusion the deduction was drawn that the words “imports” and “exports,” when used in the

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