Collector's demurrer. A suit was also brought in the United States Circuit Court to enjoin the Collector from continuing to exact duties under the Dingley Act after Porto Rico had become a part of the United States. The motion was denied and no appeal was taken from the decision of the circuit judge.10 Appeals were taken to the Supreme Court in many of these cases. That court reversed the Circuit Court and the Board of Appraisers, and decided that territory could not be domestic and foreign at the same time; that after the exchange of ratification of the treaty of Paris, Porto Rico ceased to be foreign, and therefore the Dingley Act did not apply to merchandise brought from Porto Rico to New York, and that the duties collected under protest must be

by defendant to United States Circuit Court for Southern District of New York, 1900.

"March 19, 1900.-Motion denied on authority of Crunkshank vs. Bidwell, 176 U. S. 73. Complainant

9 Pro forma, see record of Insular has an adequate, summary, and exCases.

10 Lascelles vs. Bidwell, U. S. Cir. Ct. S. D. N. Y. 1900, 102 Fed. Rep. 1004, LACOMBE, J. In this case the author of this volume appeared as attorney and counsel for the plaintiffs who were dealers in Porto Rico sugar. The injunction was asked on the ground that Porto Rico was no longer foreign, but had become a part of the territory of the United States, if not upon the signing of the treaty, not later than the exchange of ratifications. On the argument the District Attorney asked the Court to decide preliminarily whether an injunction would be granted under any circumstances, in view of the provisions of the Customs Administrative Law. The Court consented to consider that point before requiring the District Attorney to argue the question of Porto Rico's status. This case was therefore decided exactly as though the goods had been brought from Boston or Savannah. The entire

decision as reported is as follows:

peditious remedy at law under the Customs Administrative Act." No appeal was taken in this case. Under the decision in De Lima vs. Bidwell, the ruling of the Circuit Judge was error as the Supreme Court decided that the Customs Administrative Act does not apply to duties illegally exacted on goods which are not imported, i. e., not brought from a foreign country. The chief ground urged by the plaintiffs in Lascelles vs. Bidwell was that the continued exaction of duties by the collector on goods from Porto Rico had broken up the business of bringing sugar there from, and that for such continued loss of business there was no remedy at law, as no opportunity was given of paying the duties on goods coming from Porto Rico during the period of illegal exaction and it was impossible to measure the pecuniary loss sustained by the loss of business. This point does not appear to have been considered.

refunded." Mr. Justice Brown delivered the opinion of the court, Chief Justice Fuller and Justices Harlan, Brewer and Peckham concurred with him; 12 Mr. Justice McKenna wrote a dissenting opinion in which Justices Shiras and White concurred; Mr. Justice Gray also delivered a brief dissenting opinion.

§ 61c. The status of the Philippines; The Diamond Ring Case.-Although the Supreme Court decided that Porto Rico, on the exchange of ratifications of the treaty of Paris, became domestic territory, and duties on merchandise could not be collected under the Dingley Tariff act as though it were a foreign country, the Court withheld the decision in a similar case involving the dutiability of goods brought from the Philippine Islands for over six months.1 Fourteen diamond rings brought from Manila were seized in Chicago for nonpayment of duties. The owner filed a claim denying that the rings were dutiable, as they were brought from one part of the United States to another. The United States demurred to the claim and the demurrer was sustained. A writ of error was granted by the Supreme Court. In the De Lima case, which involved the status of Porto Rico, reference was made to the fact that not only had that island been ceded to the United States, but that the United States was in possession of the Island. In the Diamond Ring case the effect of the McEnery Resolution, passed by the Senate the day after the treaty of peace was ratified, was considered at length and the Court held that it did not affect the construction of the treaty.

3

§ 61d. The Status of the Hawaiian Islands.-No sepa

11 De Lima vs. Bidwell, U. S. Sup. Ct. 1901, 182 U. S. 1, BROWN, J.

Goetze vs. United States, U. S. Sup. Ct. 1901, 182 U. S. 221, BROWN, J. (No opinion; reference simply being made to the opinion just delivered in De Lima vs. Bidwell.)

12 For abstracts of the opinions in this case see APPENDIX at end of this volume. The cases have been reported in some of the Lawyers' Coöperative Reports, and will appear in 182 U. S. Reports.

§ 61c.

1 Fourteen Diamond Rings, Pepke, Claimant, vs. United States, U. S. Ct. 1901, (decided December 2, 1901).

2 U. S. District Court, Northern Dist. of Ill., July, 1900, KOHLSAAT, J. (pro forma).

3 See INSULAR CASES APPENDIX at end of this volume; consult index, thereto, for page references.

See McEnery Resolution on p. 565, post.

rate opinion was rendered in the Hawaiian Islands cases.1 Duties paid under protest on goods brought from Honolulu to New York were ordered to be refunded on the grounds which were stated in the opinion in De Lima vs. Bidwell.?

§ 61e. The Foraker Act.-The cases referred to in the preceding sections involved the payment of duties imposed and collected on merchandise brought to New York and Chicago from Porto Rico, Manila and Honolulu, under the provisions of the Dingley Act, the respective collectors claiming that the places last named remained foreign, so far as the revenue laws of the United States were concerned, until Congress by appropriate legislation determined otherwise. After May 1, 1900, however, duties were collected on goods brought from Porto Rico to New York under the Foraker act,1 socalled because the senior senator from Ohio introduced it; this act provided that duties should be levied on merchandise brought from Porto Rico to other ports of the United States at the rate of fifteen per cent of the duties collected on similar articles from foreign ports under the existing tariff act. Duties were paid under protest, and the owners brought suits against the collector for the amounts paid, claiming that the act in this respect was in violation of the provisions of the Constitution of the United States in regard to uniformity of duties and imposts throughout the United States. The United States Circuit Court sustained a demurrer to the complaint, and the Supreme Court affirmed this decision on the § 61d.

1 Crossman vs. United States, U. S. Sup. Ct., 1901, 182 U. S. 221.

2 The entire opinion is as follows (also entitled in Geotze vs. United States, BROWN, J.): "As the sole question presented by the record in these cases was whether Porto Rico and the Hawaiian Islands were foreign countries within the meaning of the tariff laws, we must hold, for the reasons stated in De Lima vs. Bidwell, just decided, that the board of general appraisers had no jurisdiction of the cases. The judgments of the Circuit Court are therefore reversed, and the cases remanded to that court with

3

instructions to reverse the action of the board of general appraisers." § 61e.

1" An act temporarily to provide revenue and a civil government for Porto Rico and for other purposes;' approved April 12, 1900, 31 U. S. St. at L. 77, ch. 191. Extracts containing the tariff provisions of this act are quoted in the opinion of FULLER, Ch. J., in Downes vs. Bidwell, 182 U. S. 244, see p. 349.

2 The Dingley Act, approved July, 1897, 30 St. at L. p. 151, see note 4, p. 120, ante.

3 Downes vs. Bidwell, U. S. Sup. Ct. 1901, 182 U. S. 244.

4 U. S. Cir. Ct. S. D. N. Y. Novem

ground that Congress has power to levy duties on goods brought from a territory of the nature of Porto Rico to other ports of the United States.

This is the most important of the decisions rendered in the Insular Cases. There was no majority opinion. Mr. Justice Brown announced the "conclusion and judgment of the Court." Mr. Justice White delivered an opinion reaching the same result but by a different process of reasoning. Justices Shiras and McKenna concurred with Mr. Justice White; Mr. Justice Gray also concurred with him, but filed a brief separate opinion. Chief Justice Fuller wrote a dissenting opinion in which Justices Harlan, Brewer, and Peckham concurred; Mr. Justice Harlan also wrote a separate opinion. The opinions are so lengthy that it is impossible even to give an abstract of them in this section or in the notes.5

§ 61 f. Duties paid in Porto Rico.-The cases referred to in the preceding sections involved duties which were paid in New York and Chicago on merchandise brought from the new possessions. There were other cases which involved the right of the United States to impose duties or merchandise brought from ports of the States to Porto Rico.1 Duties were imposed and collected under the old Spanish tariff laws for a brief period, then under military orders given by the President, and subsequently under the Foraker act. Two suits were brought, one for duties paid prior to May 1, 1900, under the Spanish tariff laws and the military government, and the other for duties paid after that date under the Foraker act. In the case involving duties paid prior to May 1, 1900, the Court sustained the right to collect duties under any laws or orders in force prior to the exchange of the ratifications of the treaty on April 11, 1899, when Porto Rico became domestic territory. It also decided that all ber, 1890, LACOMBE, J., (pro | States, No. 1; Same vs. Same, No. 2, forma). See Insular Cases Record. U. S. Sup. Ct. 1901, No. 1, 182 U. S. 222; No. 2 not yet decided. Argued January, 1901; Armstrong vs. United States, U. S. Sup. Ct. 1901. 182 U. S. 243.

5 The opinions in this case, over one hundred pages in length, are reported in 182 U. S. Rep.; for a synopsis see INSULAR CASES APPENDIX at end of this volume.

§ 61 f.

2" In their legal aspect, the duties exacted in this case were of three

1 Dooley, Smith & Co. vs. United | classes: (1) The duties prescribed

duties paid after the exchange of ratifications and until the Foraker act took effect were illegally imposed and must be refunded. The case involving the duties paid after the Foraker act took effect has not yet been decided. The counsel who argued that case laid great stress on the point that the imposition by Congress of duties on merchandise taken from a State to any other territory of the United States is equivalent to laying an export tax and, therefore, directly prohibited by the Constitution. There were no cases corresponding to these Porto Rico cases, and affecting duties paid in the Philippines and Hawaiian Islands on merchandise from other ports of the United States.

Rico, and from the correlative right to exact at New York duties upon merchandise imported from that island."

"DUTIES AFTER RATIFICATION.

by General Miles under order of on all goods, citing numerous July 26, 1898, which merely ex- cases. "The right to exact duties tended the existing regulations; on goods imported into Porto Rico (2) the tariffs of August 19, 1898, from New York arises from the and February 1, 1899, prescribed by fact that New York was still a forthe President as Commander-in-eign country with respect to Porto Chief, which continued in effect until April 11, 1899, the date of the ratification of the treaty and the cession of the island to the United States; (3) from the ratification of the treaty to May 1, 1900, when the Foraker act took effect. "DUTIES PRIOR TO RATIFICATION. "There can be no doubt with respect to the first two of these classes, namely, the exaction of duties under the war power, prior to the ratification of the treaty of peace. While it is true the treaty of peace was signed December 10, 1898, it did not take effect upon individual rights until there was an exchange of ratification. Haver vs. Yaker, 9 Wall. 32, sub nom. | administer the government under Jecker vs. Magee, 19 L. Ed. 571. Upon the occupation of the country by the military forces of the United States, the authority of the Spanish government was superseded but the necessity for a revenue did not cease. The opinion then sustains the right to impose and collect customs as a war measure

"Different considerations apply with respect to duties levied after the ratification of the treaty and the cession of the island to the United States. Porto Rico then ceased to be a foreign country, and, as we have just held in De Lima vs. Bidwell, the right of the collector of New York to exact duties upon imports from that island ceased with the exchange of ratifications." The opinion then holds that while there is no doubt as to the right to

the war power until Congress acted, there is no right to exact duties upon merchandise brought from the United States.

3 Clause 5, section 9, Article I, of the Constitution is as follows: "No tax or duty shall be laid on articles exported from any State." For the most recent utterances of the