In the following years, upon the sug- of the curriculum at Lahainaluna, as progestion by the mission of certain instructors, vided in the agreement, on or about Sepa correspondence arose between the board of tember 1, 1903, at which date the religious education and the mission, in which the tenets and doctrines, in accordance with board of education said that it was under- the creed and articles of faith of the misstood that the institution was to be con- sion, ceased to be taught, and are no longer tinued so as to aid instead of to defeat the taught. The "cultivation of sound literpurpose for which it had been founded, and ature and solid science" has also ceased, and that nothing had been done to justify the the institution has become a technical school intimation that the board had any desire under the name of "The Lahainaluna Agrito defeat such purpose, and admitted "that cultural School." a full compliance with agreement consists in appointing persons teaching in the doctrine and after the manner of the Congregational and Presbyterian churches of the United States.". And further: "The board are fully aware that if they do not see fit to carry on the institution according to the terms of the contract, they have to reconvey it, or pay the sum of $15,000." After 1865 the seminary continued to be conducted on the same lines as prior thereto. In 1894, in the Constitution of the Republic of Hawaii, it was provided that ". No public money shall be appropriated for the support of (or?) benefit of any sectarian, denominational, or private school." This provision is continued and remains in full force as a part of § 55 of the organic act. Religious instruction ceased to be a part benefit, and behoof, to have and to hold the same forever. Providing, however, and this transfer is made upon the express condition, that the said Hawaiian government agrees that the said institution shall be continued at its expense, as an institution for the cultivation of sound literature and solid science; and, further, that it shall not teach or allow to be taught any religious tenet or doctrine contrary to those heretofore inculcated by the mission, which we represent, a summary of which will be found in the confession of faith herewith inclosed, and in that in case of the nonfulfilment or violation of the conditions upon which this transfer is made by the said government, the whole property hereby transferred. hereinbefore specified, together with any additions or improvements which may have been made upon the premises, and all the right and privileges hereby conveyed or transferred to the Hawaiian government by the said island mission, shall revert to the said mission, to have and to hold the same for and in behalf of the American Board of Commissioners of of the American Board of Commissioners of Foreign Missions. These proposals, if accepted, by the Hawaiian government, shall not have binding force until they shall have received the sanction of the prudential committee of the American Board Commissioners of Foreign Missions in Boston; and further, should the said Hawaiian government accept the proposals here presented, and enter forthwith up27 S. C.-40. The territory maintains no other institution of like character and on similar principles in any other place on the island. The appellants are the successors of the American Board of Commissioners for Foreign Missions. Upon these facts, it is alleged, that appellants have become entitled to a return of the property conveyed or to the payment of $15,000; that the territory has refused to do either, but has elected to retain the property, which election is evidenced by its refusal to pay the said sum, and the further fact that it is proceeding to erect expensive buildings thereon and expend large sums of money in fitting the property and the school to become a technical school,—namely, an agricultural college. The petition was demurred to upon the grounds substantially as follows: 1. That the court had no jurisdiction of on the fulfilment of the conditions, and should the said transfer not meet the approbation of the prudential committee, the mission, on its part, pledges itself to refund to the said government any necessary expenses it may have incurred in carrying on the institution whilst the parties were awaiting the ratification or rejection of this transfer by the said prudential committee. Provided, however, that moneys shall not have been expended in enlargement or improvements, other than what may have been actually necessary to keep the buildings in repair and carry on the institution. In case of disagreement of the parties as to the amount proper to be refunded, in case of the nonratification of this conveyance by the prudential committee, the sum shall be determined by two arbitrators, one of which shall be chosen by each of the respective parties, and which arbitrators, in case of disagreement, shall elect a third to decide upon the award. feel The foregoing remarks and proposals are respectfully submitted for the consideration of his Majesty's government, and I greatly obliged by an early answer. We have the honor to be, Very respectfully, your ex. friends and most obedient servants, W. P. Alexander, C. B. Andrews, S. N. Castle, Com., By S. N. Castle. the subject-matter of the claim. 2. That the and that practice there cannot be a shade United States was a necessary party, the of doubt as to the intention of the parties. property described in the petition having | It is insisted, however, by the appellee, that been transferred and ceded to the United the agreement is clear and unambiguous, States by the treaty of annexation of July and that it does not present a case for the 7, 1898. 3. That the petition did not set resort to extrinsic evidence. We cannot conout facts sufficient to constitute a cause of cur with this view. There is quite a range action in that, (a) it did not appear that of meaning in the words "sound literature the agreement set forth in the petition was and solid science." To interpret or specialize ratified by the legislature; (b) that the them and make definite application of them right of action accrued more than two years would certainly receive aid from the pracprior to the commencement of the action; tice of the parties. It is contended by ap(c) it did not appear that there had been a pellants that there was a close connection breach of the conditions of the agreement; between them and the "definite system of (d) or, if so, that it occurred in compliance doctrine" which was the "central purpose with law and statutes which rendered the of the mission." We, however, need not fulfilment of the conditions impossible. 4. dwell further upon this contention, though That the petition was indefinite and uncer- a plausible argument has been advanced to tain, in that the allegations as to breach sustain it, and we pass to the next controof conditions pleaded were conclusions of verted contention. The words of the agreelaw, it nowhere appearing in the petition ment are that the government "shall not in what respect the conditions had been teach or allow to be taught any religious broken. The supreme court overruled the tenet or doctrine contrary to those herefirst, second, and fourth grounds, and di- tofore inculcated by the mission, a sumvisions a and b of the third ground of de- mary of which will be found in the confession of faith herewith inclosed Were these words all there was of prohibition and purpose as to religion? May we believe that it became suddenly the purpose to change an institution which had Messrs. Lorrin Andrews, E. C. Peters, and had its impulse and foundation in religious M. F. Prosser for appellee. murrer. Messrs. David L. Withington, William R. Castle, W. O. Smith, A. Lewis, Jr., and C. H. Olson for appellants. 99 zeal to convert the Hawaiians to Christianity and to educate young men to be "teach Mr. Justice McKenna delivered the opin- ers of religion," to one simply literary and ion of the court: It scientific and nonsectarian? Had the be- The contentions of the parties are sharp ly in opposition as to the agreement, and the necessity and competency of extrinsic evidence to explain it. Appellee contends that we are confined to the letter of the agreement, and, so confined, its conditions have been fulfilled. In other words, that record In other words, that "sound literature and solid science" are still cultivated, and that no religious tenet or doctrine contrary to those heretofore inculcated by the mission is taught. Or, to express the contention in language other than that of the agreement, that a school devoted to one subject of secular science, and which excludes all religious teaching, was contemplated by or is permitted by the agreement. Opposing these views, appellants contend that a mere technical school does not fulfil the agreement; that the terms of the agreement require the "inculcation of general learning and knowledge," accompanied with religious instruction in accordance with the confession of faith submitted to the Hawaiian government. And it is insisted that, if there is anything doubtful in the agreement, it may be interpreted by the circumstances which preceded it and the immediate and long-continued practice under it. If we may resort to those circumstances The mission reminds the Minister of Public Instruction that the seminary was established in 1831, "to promote the diffusion of enlightened literature and Christianity throughout the islands," and that it had been unceasingly watched over, cherished, and cared for by the mission, and that $77,000 had been expended for its benefit. It was stated that, in consequence of debts incurred "in the prosecution of its labors of benevolence and mercy," the American Washington, A. & G. Steam Packet Co. 13 "The reasons for requesting the substitution are, that the previously presented confession, although according in all its specified doctrines with our belief and with that also of the churches by whom that institution has been founded and sustained, is yet not so distinctive as to present a barrier to the introduction there of other deleterious doctrine not specified in said confession. It will admit, also, of teachings of this mission and of the churches sustaining it, such as we feel to be entirely subversive of evangelical Christianity. Not doubting but that these reasons will commend themselves to the members of his Majesty's government, we beg leave to express, in presenting them, the high consideration with which we remain." The correspondence concerned the transfer of a school established in 1835, the design of which was to perpetuate the Christian religion, and with an object described to be "still more definite and of equal or greater importance," that is, "to educate young men to be Christian ministers." A religious instruction was prescribed. All this the government was informed of when the proposition was made to transfer the school to its "fostering care and patronage." And the government accepted the grant, accepted as it was tendered, and necessarily for the purpose it was tendered. Even if we stopped here, conviction of the justness of that conclusion is almost indisputable. It becomes indisputable if extrinsic evidence be considered, and we have no doubt that it may be. In Bradley v. v. United States, 199 U. S. 397, 399, 50 | itself from its engagement. The provision L. ed. 245, 246, 26 Sup. Ct. Rep. 54; Chicago Great Western R. Co. v. Northern P. R. Co. 42 C. C. A. 25, 101 Fed. 792. And many state cases could be cited. for the teaching of "sound literature and solid science" might be considered of "expansive character," to use the description of Lieber, and change with the progress of both. The provision for religious teaching is unchanging. It is as definite and absolute to-day as it was when it was written. The alternative of it the agreement has made the return of the property conveyed, or the payment of $15,000. Judgment reversed and case remanded, with directions to proceed in conformity with this opinion. The design of studies for the school we have detailed. The government recognized and continued both without question or change in any way. The seminary buildings were burned down in 1862. The government rebuilt them and continued the school. The petition alleges that the principal of the school, in 1862-63, in his report, said: "The Hawaiian government has always been a liberal friend and benefactor. . . . Never, in any way, have they interfered with our manner of instruction or in the course of instruction pursued. In our work we have had all the freedom which we possibly could have had under the A. B. C. F. M." Also, referring to pupils HENRY E. FRANKENBERG COMPANY, who, under the religious instruction at the school, became ministers, he says: "While six who were connected with it since it has Mr. Justice Brewer took no part in the decision of this case. Petitioner, UNITED STATES. been under the care of the Hawaiian gov- Duties-on metal beads. ernment have been ordained to the same office." Metal beads temporarily strung on cotton cords or strings for the purpose of facilitating transportation are not dutiable under the tariff act of July 24, 1897 (30 Stat. at L. 167, 189, chap. 11, U. S. Comp. Stat. 1901, pp. 1645, 1673), par. 408, at 35 per cent ad valorem as loose beads, but are subject to the 45 per cent ad valorem duty prescribed by par. 193 for articles or wares posed wholly or in part of metal, whether not specially provided for in the act, comwholly or partly manufactured. In 1864 new interests appeared and a change in the purpose of the school commenced to be urged. It was met by an adverse opinion of the Attorney General, who pointed out the conditions of the transfer, and the condition of their nonfulfilment to be the restoration of the property to the A. B. C. F. M. And, again, in 1865, the board of education, while denying the right of the mission to nominate instructors, conceded the obligation to continue the institution, "so as to aid, instead of defeating, the purpose for which it was founded," and the Argued April 12, 1907. Decided May 13, alternative to be the surrender of the property or the payment of $15,000. "Religious [No. 257.] 1907. instruction," it is alleged, "upon the lines ON WRIT of Certiorari to the United formerly pursued by the mission and subsequently by the government, in accordance with the agreement, was continued up to or about September 1, 1903.❞ We hence see that not only the immediate practice of the government construed the agreement as contended for by appellants, but the practice of over fifty years proclaimed the same meaning,-proclaimed it without question and against a suggestion and agitation to reject it. It is somewhat staggering to be told that such continuity of practice is not a legal interpreter of the meaning of the parties, and that the only criterion can be a precise and isolated form of words which, at the end of a half a century of contrary admission and declaration, one of the parties finds it convenient to bring forward. It is no defense that the government's policy has changed. It cannot so release States Circuit Court of Appeals for the Second Circuit to review a judgment which affirmed a judgment of the Circuit Court for the Southern District of New York, which had, in turn, affirmed the decision of the Board of General Appraisers, sustaining the collector in assessing a 45 per cent ad valorem duty on metal beads temporarily strung on cotton cords or strings for the purpose of facilitating transportation. Affirmed. See same case below, 76 C. C. A. 514, 146 The facts are stated in the opinion. Mr. Justice McKenna delivered the opinion of the court: The question involved in this case is whether certain importations of metal beads are dutiable under paragraph 408 of the tariff act of July 24, 1897 [30 Stat. at L. 167, 189, chap. 11, U. S. Comp. Stat. 1901, pp. 1645, 1673], at 35 per cent ad valorem, or at 45 per cent ad valorem under paragraph 193. The collector assessed them at the latter rate. The petitioner protested. Upon submission of the protest to the board of general appraisers, that board sustained the collector. Its decision was successively affirmed by the circuit court and the circuit court of appeals. 76 C. C. A. 514, 146 Fed. 63. The applicable paragraphs are respectively as follows: 408, "Beads of all kinds not threaded or strung, thirty-five per centum ad valorem;" 193, "Articles or wares not mounted pay. A passed assistant surgeon in the Navy, with the rank of lieutenant, is entitled to the pay of a captain in the Army, mounted, in view of the respective provisions of U. S. Rev. Stat. § 1466, U. S. Comp. Stat. 1901, p. 1029, assimilating in rank lieutenants in the Navy with captains in the 3, 1899 (30 Stat. at L. 1007, chap. 413, U. Army, of the Navy personnel act of March S. Comp. Stat. 1901, p. 1072), § 13, entitling commissioned officers of the line of the Navy to the same pay and allowance as officers of corresponding rank in the Army, and of the act of June 7, 1900 (31 Stat. at L. 697, chap. 859, U. S. Comp. Stat. 1901, P: 990), declaring that assistant surgeons p. shall rank with assistant surgeons in the Army, who are mounted, since Congress must have used the words "assistant surgeons" as descriptive of the whole class of assistant surgeons, passed as well as those not passed. specially provided for in this act, composed Navy-pay of passed assistant surgeon― wholly or in part of . . metal, and whether partly or wholly manufactured, forty-five per centum ad valorem." There is no dispute about the character of the articles. They are metal beads, strung on cotton cords or strings. They cannot, therefore, be said to be beads "not threaded or strung," which paragraph 408 makes dutiable at 35 per cent, if the words of that paragraph be taken literally. But it is contended that the construction of that paragraph is dependent upon the use to which the beads are put and the purpose on account of which they are strung. It is contended, and the contention is supported by the testimony, that the beads are used in the manufacture of purses, for the embroidery of cushions and dresses; never for personal adornment; and that they are strung or threaded in bunches for the purpose of facilitating transportation, and hence, in contemplation of the statute, loose beads. To this argument the circuit court of appeals of the seventh circuit yielded. United States v. Buettner, 66 C. C. A. 289, Argued April 25, 1907. 133 Fed. 163. It did not prevail, however, with the circuit court of appeals of the second circuit in the case at bar nor in a prior case. Steiner v. United States, 24 C. C. A. 690, 26 U. S. App. 778, 79 Fed. 1003. Notwithstanding this conflict in the circuit court of appeal, the case is in such narrow compass that an extended discussion is not necessary. It may be that the stringing of the beads has but a temporary purpose. We, however, are not at liberty to disregard the condition upon which the law makes the duty depend. Indeed, the considerations expressed by the board of appraisers make it certain that the language of paragraph 408 was deliberately used to apply only to beads actually loose. This view is supported by the testimony as well. It was testified that prior to 1897 [No. 277.] 1907. Decided May 13, PPEAL from the Court of Claims to re A view a judgment awarding a passed as- See same case below, 41 Ct. Cl. 517. Mr. Justice McKenna delivered the opinion of the court: The appellee filed a petition in the court of claims to recover from the United States the sum of $282.66 for the difference he |
