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such cession and the delivery of possession, such territory would become a foreign country, and be reinstated as such under the tariff laws. Certainly no act of Congress would be necessary in such case to declare that the laws of the United States had ceased to apply to it.
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 may be domestic for one purpose and foreign for another. It may undoubtedly become necessary for the adequate administration of a domestic territory to pass a special act providing the proper machinery and officers, as the President would have no authority, except under the war power, to administer it himself; but no act is necessary to make it domestic territory if once it has been ceded to the United States. We express no opinion as to whether Congress is bound to appropriate the money to pay for it. This has been much discussed by writers upon constitutional law, but it is not necessary to consider it in this case, as Congress made prompt appropriation of the money stipulated in the treaty. This theory also presupposes that territory may be held indefinitely by the United States; that it may be treated in every particular, except for tariff purposes, as domestic territory; that laws may be enacted and enforced by officers of the United States sent there for that purpose; that insurrections may be suppressed, wars carried on, revenues collected, taxes imposed; in short, that everything may be done which a government can do within its own boundaries, and yet that territory may still remain a foreign country. That this state of things may continue 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 a matter of law we deem to be judicial legislation. We find no warrant for it in the Constitution or in the powers conferred upon this court. It is true the non-action 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.
If an Act of Congress be necessary to convert a foreign country into domestic territory, the question at once suggests itself, what is the character of the legislation demanded for this purpose? Will an act appropriating money for its purchase be sufficient. Apparently
Will an act appropriating the duties collected upon imports to and from such country for the benefit of its government be sufficient? Apparently not. Will acts making appropriations for its postal service, for the establishment of lighthouses, for the maintenance of quarantine stations, for erecting public buildings, have that effect? Will an act establishing a complete local government, but with the reservation of a right to collect duties upon commerce, be adequate for that purpose? None of these, nor all together, will be sufficient, if the contention of the government be sound, since acts embracing all these provisions have been passed in connection with Porto Rico, and it insisted that it is still a foreign country within the meaning of the tariff laws. We are unable to acquiesce in this assumption that a territory may be at the same time both foreign and domestic.
We are therefore of the opinion that at the time these duties were levied Porto Rico was not a foreign country, within the meaning of the tariff laws, but a territory of the United States, that the duties were illegally exacted and that the plaintiffs are entitled to recover them.
The judgment of the Circuit Court is therefore Reversed.
Note. Five justices concurred in the majority opinion. Three justices dissented upon the ground that as the custom laws of the United States had not as yet been applied by Congress to Porto Rico, that such island still foreign within the meaning of the Dingley Tariff act. Justice Gray dissented upon the ground that the majority opinion was irreconcilable with the opinion of the majority of the court in Downes v. Bidwell.
DOWNES v. BIDWELL.
182 U. S., 244. 1900.
This was an action begun in the Circuit Court of the United States for the southern district of New York, by Downes, against the collector of the port of New York, Bidwell, to recover duties paid under protest upon certain oranges consigned to Downes in New York and brought thither from San Juan, Porto Rico, in November, 1900, after the passage of the Act of Congress taking effect May 1, 1900, and known as the Foraker act, which provided for a civil government and revenues for the island of Porto Rico and required that the payment of 15 per cent. of the duty levied on like articles from foreign countries should be collected on goods coming from Porto Rico. The Circuit Court decided in favor of the collector of the port of New York and against Downes' right to recover the duties, whereupon Downes appealed to the United States Supreme Court.
MR. JUSTICE BROWN announced the conclusion and judgment of the court.
In the case of De Lima v. Bidwell, just decided, we held that upon the ratification of the treaty of peace with Spain, Porto Rico ceased to be a foreign country, and became a territory of the United States, and that duties were no longer collectible upon merchandise brought from that island. We are now asked to hold that it became a part of the United States within that provision of the Constitution which declares that all duties, imposts and exercises shall be uniform throughout the United States." (Art. I, Sec. 8.) If Porto Rico be a
part of the United States, the Foraker act imposing duties upon its products is unconstitutional, not only by reason of a violation of the uniformity clause, but because by Sec. 9 “vessels bound to or from one State” cannot "be obliged to enter, clear, or pay duties in another."
The case also involves the broader question whether the revenue clauses of the Constitution extend of their own force to our newly acquired territories. The Constitution itself does not answer the question. Its solution must be found in the nature of the government created by that instrument, in the opinion of its contemporaries, in the practical construction put upon it by Congress and in the decisions of this court.
To sustain the judgment in the case under consideration it by no means becomes necessary to show that none of the articles of the Constitution apply to the Island of Porto Rico. There is a clear distinction between such prohibitions as go to the very root of the power of Congress to act at all, irrespective of time or place, and such as are operative only "throughout the United States" or among the several States.
Upon the other hand, when the Constitution declares that all duties shall be uniform "throughout the United States," it becomes necessary to inquire whether there be any territory over which Congress has jurisdiction which is not a part of the "United States," by which term we understand the States whose people united to form the Constitution, and such as have been since admitted to the Union upon an equality with them. Not only did the people in adopting the Thirteenth Amendment thus recognize a distinction between the United States and "any place subject to their jurisdiction,” but Congress itself, in the Act of March 27, 1804, providing for the proof of public records, applied the provisions of the act not only to "every court and office within the United States," but to the "courts and offices of the respective territories of the United States and countries subject to the jurisdiction of the United States," as to the courts and offices of the several States.
Unless these words are to be rejected as meaningless, we must treat them as a recognition by Congress of the fact that there may be territories subject to the jurisdiction of the United States, which are not of the United States.
In determining the meaning of the words of Article I, Section 6, "uniform throughout the United States," we are bound to consider not only the provisions forbidding preference being given to the ports of one State over those of another (to which attention has already been called), but the other clauses declaring that no tax or duty shall be laid on articles exported from any State, and that no State shall, without the consent of Congress, lay any imposts or duties upon imports or exports, nor any duty on tonnage. The object of all of these was to protect the States which united in forming the Constitution from discriminations by Congress, which would operate unfairly or injuriously upon some States and not equally upon others. The opinion of Mr. Justice White in Knowlton v. Moore (178 U. S. 41) contains an elaborate historical review of the proceedings in the convention, which resulted in the adoption of these different clauses and their arrangement, and he there comes to the conclusion (p. 105) that "although the provision as to preference between ports and that regarding uniformity of duties, imposts and excises were one in purpose, one in their adoption," they were originally placed together, and “became separate only in arranging the Constitution for the purpose of style.” Thus construed together, the purpose is irresistible that the words "throughout the United States” are indistinguishable from the words "among or between the several States," and that these prohibitions were intended to apply only to commerce between ports of the several States as they then existed or should thereafter be admitted to the Union.
Indeed, the practical interpretation put by Congress upon the Constitution has been long continued and uniform to the effect that the Constitution is applicable to territories acquired by purchase or conquest only when and so far as Congress shall so direct.
We are also of opinion that the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States shall receive its inhabitants and what their status shall be in what Chief Justice Marshall termed the "American Empire.” There seems to be no middle ground between this position and the doctrine that if their inhabitants do not become, immediately upon annexation, citizens of the United States, their children thereafter born, whether savages or civilized, are such, and entitled to all the rights, privileges and immunities of citizens. If such be their status, the consequences will be extremely serious. Indeed, it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions and modes of life, shall become at once citizens of the United States. In all its treaties hitherto the treaty-making power has made special provision for this subject; in the cases of Louisiana and Florida, by stipulating that “the inhabitants shall be incorporated into the Union of the United States and admitted as soon as possible * * to the enjoyment of all the rights, advantages and immunities of citizens of the United States;" in the case of Mexico, that they should "be incorporated into the Union, and be admitted at the proper time (to be judged of by the Congress of the United States), to the enjoyment of all the rights of citizens of the United States;" in the case of Alaska, that the inhabitants who remained three years, "with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights," etc.; and in the case of Porto Rico and the Philippines, "that the civil rights and political status of the native inhabitants * * * * shall be determined by Congress.” In all these cases there is an implied denial of the right of the inhabitants
to American citizenship until Congress by further action shall signify its assent thereto.
We are therefore of opinion that the Island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; that the Foraker Act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff cannot recover back the duties exacted in this case.
The judgment of the Circuit Court is therefore Affirmed.
Note. There were a number of separate opinions delivered by the justices. Those who concurred in the majority judgment came to the same conclusion of Mr. Justice Brown, but by a different line of reasoning. For example, Justices White, Shiras and McKenna held that until Congress has formally incorporated the territory into the United States, the various provisions of the Constitution are inapplicable thereto, as otherwise, so far as fiscal matters are concerned, the action of the treaty making power could override the will of Congress.
The four justices who dissented held that uniformity of taxation means geographical uniformity throughout the United States and that the phrase "the United States” includes the territories as well as the States.
DOOLEY v. UNITED STATES.
183 U. S., 151. 1901.
The Foraker Act required that all merchandise going into Porto Rico from the United States should be subject to a duty of 15 per cent of the amount of duties paid upon similar merchandise imported from foreign countries. Dooley, Smith and Company imported certain merchandise into Porto Rico from New York. They paid the duties under protest and brought suit in the Circuit Court to recover them back on the ground that the Foraker Act was unconstitutional, being repugnant to the clause in the Constitution declaring “no tax or duty shall be laid on articles exported from any State.” The Circuit Court decided that the duties were properly collected, whereupon Dooley, Smith and Company appealed the case to the United States Supreme Court.
MR. JUSTICE Brown delivered the opinion of the court.
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 imposts or duties on imports or exports," was held in Woodruff v. Parkham, 8 Wall, 123, to apply only to articles imported from foreign countries into the United States.