315

Congress, still supposing that it was acting within the limits of its powers under the Constitution, again, by the act of April 23d, 1800, chap. 31, amended and extended that of July 6th, 1797. By the latter act a general stamp office was established, and provision was made, among other things, for the punishment, by fine and imprisonment, of those who, with the intent to defraud the United States of any of the duties laid by the original act of 1797, counterfeited or caused to be forged or counterfeited, any vellum, parchment, or paper provided for bying for the transportation from that state, Congress under that act. 2 Stat. at L. 40, 42. The act of April 23d, 1800, was amended by an act passed March 3d, 1801, chap. 19, by which it was provided that deeds, instruments or writings issued without being stamped could be thereafter stamped and become valid and available as if they had been originally stamped as required by law. 2 Stat. at. L. 109.

*318

*817

662

21 SUPREME COURT REPORTER.

OCT. TERM, obligation for the transportation or convey-present case, the stamp duty imposed was ance thereof, as in this section provided, without any reference to the quantity or having attached thereto or stamped thereon value of the property. a stamp or stamps expressing in value the amount of such tax duty," etc. Stat. Cal. 1858, p. 305; Id. 1857, p. 304.

In our judgment, the small stamp duty imposed by the act of 1898 specifically upon the vellum, parchment, or paper upon which was written or printed a bill of lading for property, of whatever value, intended for export, cannot be regarded as a duty on the property itself.

The difference between the California statute and the act of Congress is manifest. By the former the amount of the tax upon bills of lading depended upon the value of the gold or silver specified in them and ex- It is said that the power to tax is the pow ported, while the latter imposed a tax of er to destroy, and that if Congress can imonly 10 cents on the vellum, parchment, or pose a stamp tax of 10 cents upon the velpaper upon which was written or printed alum, parchment, or paper on which is writbill of lading for property to be exported, ten a bill of lading for articles to be exported without regard to its quantity or value. If from a state, it could as well impose a duty Congress had graduated the stamp duty ac- of $5,000, and thereby indirectly tax the cording to the quantity or value of the ar- articles intended for export. That concluticles exported, there might have been ground sion would by no means follow. A stamp for holding that the purpose and the neces- duty has now, and has had for centuries, a sary result was to tax the property, and not well-defined meaning. It has always been the vellum, parchment, or paper on which distinguished from an ordinary tax measthe bill of lading was written or printed. ured by the value or kind of the property This rule of interpretation was recognized taxed. If Congress, in respect of a bill of in Pace v. Burgess, 92 U. S. 372, 375, 23 L. lading for articles to be exported, had imed. 657, 659. That case arose under the act posed a tax of $5,000 for and in respect of of July 20th, 1868, chap. 186, imposing the vellum, parchment, or paper upon which duties on distilled spirits and tobacco, and such bill was written, the courts, looking befor other purposes, and which provided that yond form and considering substance, might "all tobacco and snuff intended for export, well have held that such an act was contrary before being removed from the manufactory, to the settled theory of stamp-tax laws, and shall have affixed to each package an en- that the purpose and necessary operation of graved stamp indicative of such intention, such legislation was, in violation of the Conto be provided and furnished to the several stitution, to tax the articles specified in such collectors, as in the case of other stamps, bill, and not to impose simply a stamp duty. and to be charged to them and accounted Here, the small duty imposed, without reffor in the same manner; and for the expense erence to the kind, quantity, or value of the attending the providing and affixing such articles exported, renders it certain that stamps, twenty-five cents for each package when Congress imposed such duty specificalso stamped shall be paid to the collector only on the vellum, parchment, or paper upon making the entry for such transportation." which the bill of lading was written or print15 Stat. at L. 125, 158, § 74. The contentioned, it meant what it so plainly said; and no was that the statute imposed a tax or duty ground exists to impute a purpose by indiin violation of the constitutional prohibition rection to tax the articles exported. of taxes or duties "on any articles exported There is another view of this case which from any state." Art. 1, § 9. This court presents considerations of a serious characoverruled that contention upon the ground ter. In the opinion just rendered it is conthat it was apparent from the statute that ceded that a stamp tax on vellum, parch"the stamp was intended for no other pur-ment, or paper on which is printed or writpose than to separate and identify the to- ten a bill of lading of goods to be shipped bacco which the manufacturer desired to ex- out of the United States could be sustained port, and thereby, instead of taxing it, to re- if regard be had to the practice of the govlieve it from the taxation to which other to- ernment since its organization. But that bacco was subjected. It was a means de- practice, covering more than a century, vised to prevent fraud and secure the faith-must, it seems, go for naught. ful carrying out of the declared intent with regard to the tobacco so marked. The payment of 25 cents or of 10 cents for the stamp used was no more a tax on the export than was the fee for clearing the vessel in which it was transported, or for making out and certifying the manifest of the cargo." The court added-and this is important in its bearing on the case before us: "It [the stamp] bore no proportion whatever to the quantity or value of the package on which it was affixed. These were unlimited, except by the discretion of the exporter or the convenience of handling. The large amount paid for such stamps by the plaintiff only shows that he was carrying on an immense business." As in Pace v. Burgess, so in the

In Stuart v. Laird (1803) 1 Cranch, 299, 309, 2 L. ed. 115, 118, the question arose whether the justices of this court had the right, although authorized by an act of Congress, to sit as circuit judges, not having been appointed as such nor having any distinct commissions for that purpose. This court, speaking by Mr. Justice Patterson, said: "To this objection, which is of recent date, it is sufficient to observe, that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary in terpretation of the most forcible nature. This practical exposition is too strong and

⚫320

obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed."

In Prigg v. Pennsylvania, 16 Pet. 541, 608, 621, 10 L. ed. 1061, 1086, 1091, this court, speaking by Mr. Justice Story, after referring to the section of the act of February 12th, 1793, requiring a certificate to be given, under certain circumstances, to the owner of a fugitive slave apprehended under that act, said: "So far as the judges of the courts of the United States have been called upon to enforce it and to grant the certificate required by it, it is believed that it has been uniformly recognized as a binding and valid law, and as imposing a constitutional duty. Under such circumstances, if the question were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognition of its validity, would, in our judgment, entitle the question to be considered at rest; unless, indeed, the interpretation of the Constitution is to be delivered over to interminable doubt throughout the whole progress of legislation and of national operations. Congress, the executive, and the judiciary have, upon various occasions, acted upon this as sound and reasonable doctrine,"citing, among other cases, that of Stuart v. Laird, 1 Cranch, 229, 2 L. ed. 115.

quotation in The Laura from the opinion in Sarony's Case was defective in that it omitted, by mistake in printing, the word "almost" before "conclusive." But the error does not affect the substance of the decision rendered, as the court, in the case of The Laura, approved and reaffirmed what was said in Stuart v. Laird.

In Schell v. Fauche, 138 U. S. 562, 34 L. ed. 1040, 11 Sup. Ct. Rep. 376, this court, speaking by Mr. Justice Brown, cited with approval what is above quoted from Stuart v. Laird, adding: “In all cases of ambiguity, the contemporaneous construction, not only of the courts, but of the departments, and even of the officials whose duty it is to carry the law into effect, is universally held to be controlling."

In McPherson v. Blacker, 146 U. S. 1, 27, 36 L. ed. 869, 874, 13 Sup. Ct. Rep. 3, 7, this court, speaking by the present chief justice, said: "The framers of the Constitution employed words in their natural sense; and where they are plain and clear, resort to collateral aids to interpretation is unnecessary and cannot be indulged in to narrow or enlarge the text; but where there is ambiguity or doubt, or where two views may well be entertained, contemporaneous and subsequent practical construction are entitled to the greatest weight. Certainly, plaintiffs in error cannot reasonably assert that the clause of the Constitution under consideration so plainly sustains their position as to entitle them to object that contemporaneous history and practical construction are not to be allowed their legitimate force; and, conceding that their argument inspires a doubt sufficient to justify resort to the aids of interpretation thus afforded, we opinion that such doubt is thereby resolved against them, the contemporaneous practi cal exposition of the Constitution being too strong and obstinate to be shaken or controlled. Stuart v. Laird, 1 Cranch, 299, 309,

are of

In The Laura, 114 U. S. 411, 416, sub nom. Pollock v. Bridgeport S. B. Co. 29 L. ed. 147, 148, 5 Sup. Ct. Rep. 881, 883, in which the question arose as to the validity of an act of Congress approved March 3d, 1797 (1 Stat. at L. 506, chap. 13), authorizing the Secretary of the Treasury to remit a forfeiture of property after final sentence of condemnation, this court said: "Touching the objection now raised as to the constitutionality of the legislation in question, it is sufficient to say, as was said in an early case, that the practice and acquiescence under it, 'commencing with the organization 2 L. ed. 115, 118." of the judicial system, affords an irresistible Cases almost without number could be reanswer, and has indeed fixed the construc-ferred to in which the same principles of tion. It is a contemporary interpretation of constitutional construction are announced the most forcible nature. This practical as in the cases above cited. In the latest exposition is too strong and obstinate to be case-Knowlton v. Moore, 178 U. S. 41, 56, shaken or controlled. Of course, the ques- 44 L. ed. 969, 975, 20 Sup. Ct. Rep. 747, 753 tion is at rest, and ought not now to be disturbed.' Stuart v. Laird, 1 Cranch, 308, 2 L. ed. 118. The same principle was announced in the recent case of Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57, 28 L. ed. 349, 351, 4 Sup. Ct. Rep. 279, 281, where a question arose as to the constitutionality of certain statutory provisions reproduced from some of the earliest statutes enacted by Congress. The court said: "The construction placed upon the Constitution by the first act of 1790 and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is, of itself, entitled to very great weight; and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is [almost] conclusive.'" This

this court had occasion, in its review of taxing legislation by Congress, to refer to the act of July 6th, 1797, the very act in which Congress first imposed a stamp duty on vellum, parchment, or paper upon which was written a bill of lading for articles to be exported. Touching the objection that Congress could not constitutionally impose, as by that act was imposed, a tax on inheritances or legacies, this court, speaking by Mr. Justice White, said: "It is to be remarked that this proposition denies to Congress the right to tax a subject-matter which was conceded to be within the scope of its a power very early in the history of the government. The act of 1797,*which ordained legacy taxes, was adopted at a time when the founders of our government and framers of our Constitution were actively participating in public affairs, thus giving a prae

tical construction to the Constitution which | eral acts relating to stamp duties of that they had helped to establish. Even the then character. The words of those acts are members of the Congress who had not been clear, and are capable of but one construcdelegates to the convention which framed tion; and the court determines the case up. the Constitution must have had a keen ap-on the ground alone of want of power in Conpreciation of the influences which had gress to impose the stamp duty in question. shaped the Constitution and the restrictions Without further discussion or citation of which it embodied, since all questions which authorities, we submit that the denial, at related to the Constitution and its adoption this late day, of the power of Congress to immust have been, at that early date, vividly pose what is strictly a stamp duty on the impressed upon their minds. It would, under vellum, parchment, or paper upon which is these conditions, be indeed surprising if a written or printed a bill of lading for goods tax should have been levied without ques- to be exported to a foreign port or place, intion upon objects deemed to be beyond the volves not only a departure from canons of grasp of Congress because exclusively with- constitutional construction by which it has in state authority." been controlled for more than a century, but, in the words of Prigg v. Pennsylvania, delivers the interpretation of the Constitution "over to interminable doubt throughout the whole progress of legislation and of national operations." Practically no weight has been given in the opinion just filed to the fact that the power now denied to Congress has been exercised since the organization of the government, without any suggestion or even intimation by a single jurist or statesman during all that period that the Constitution forbade its exercise. It is said that the question of power never was presented for

Many cases have been cited which hold that the uniform contemporaneous construction by executive officers charged with the enforcement of a doubtful or ambiguous law is entitled to great weight, and snould not be overturned unless it be plainly or obviously erroneous. If such respect be accorded to the action of mere executive officers, how much greater respect is due to the legislative department when it has, at different periods in the history of the country, exercised a power as belonging to it under the Constitution, and no one in the course of a century questioned the existence of the pow-judicial determination prior to the present er so exercised. Besides, we have here a question of the constitutional power of Congress under the Constitution, and not a question relating merely to the practice of executive officers acting under a law susceptible of different interpretations. No one of the acts of Congress imposing a stamp duty on the vellum, parchment, or paper on which a bill of lading of articles to be exported was written can be classed among laws that are doubtful or ambiguous in their meaning. No person, however skilful in the use of words, who attempts to frame a statute imposing a stamp duty, pure and simple, on such vellum, parchment, or paper, could possibly employ language expressing that thought more distinctly than Congress has done in the sev

case, and therefore this court is at liberty to determine the matter as if now for the first time presented. But the answer to that suggestion is that, in view of the frequent legislation by Congress and its enforcement for nearly a century, the question must have arisen if it had been supposed by anyone that such legislation infringed the constitutional rights of the citizen. Within the rule announced in Stuart v. Laird, and in other cases, the questions should be considered at rest.

In view of the importance of the case, we have deemed it appropriate to state the reasons of our dissent from the opinion and judgment just rendered.

1. Land claimed to be within the limits of a Mexican grant is not withdrawn and reserved from entry under the mineral laws of the United States by reason of the mere fact that the claim is before the court of private land claims for adjudication, since there is nothing In the treaty with Mexico to work that result, and the provision of the act of 1854 (10 Stat. at L. 308, chap. 103), reserving such land until the final action of Congress on such claims, was repealed by the act of Congress of March 3, 1891 (26 Stat. at L. 854, chap. 539. § 15), establishing the court of private land claims. 2. An action of ejectment to recover mining property cannot be maintained on the ground that defendants have acquired it by a relocation in pursuance of a conspiracy with plaintiff's partner, whereby that partner, who was not one of the relocators, ceased to do the necessary work on the mine and abandoned its possession, since these facts, whatever equities they may raise as against the defendants, give plaintiff no legal title to the mine or any part thereof.

[No. 147.]

thereupon sued out a writ of error from this

court.

For the purpose of the trial the parties entered into the following stipulation:

"It is stipulated and agreed by and be tween the plaintiff and defendants in the above-entitled cause that the premises in controversy in this case are situated within the limits of private land claim reported as number 135 in the office of the surveyor general of the territory of New Mexico, known as the Canada de Cochiti tract, as said claim was surveyed by the surveyor general, said survey having been made and approved by Clarence Pullen, surveyor general, on the date of June 29, A. D. 1885.

"It is further stipulated that said private land claim was never confirmed upon report of the surveyor general, but two petitions for the confirmation of the same were filed in the court of private land claims, one by Joel Parker Whitney, José Juan Lucero, Lauriano Lucero, Juan Cristoval Lucero, José de Jesus Lucero, Juan Teodora Lucero, José Telesforo Lucero, Bernard S. Rodey, and Hannah Harris, being numbered 205 of the docket of the court of private land claims at Santa Fé, and filed March 2, 1893; and the other petition being filed by Manuel Hurtado and José Antonio Gallego on the 3d day of March, 1893, and that said petitions were consolidated in said cases heard, and decree of confirmation rendered by said court on the 29th day of September, A. D.

Argued March 22, 1901. Decided May 13, 1894, a compared copy of which decree is at

1901.

tached to this stipulation.

the said premises in controversy in this case "It is further stipulated and agreed that are not included within the boundaries of said grant as confirmed by said decree.

"It is further stipulated and agreed that of the said petitioners to the Supreme an appeal was taken from said decree by all Court of the United States, in which court said cause is now pending upon said appeal and undetermined, said appeal being dated the 11th day of March, A. D. 1895.

of this cause to the same effect as if they file in the surveyor general's office, subject, were the original documents and archives on however, to such objection as the parties may make upon other grounds."

that he and one Benjamin Johnson and the The plaintiff also showed upon the trial defendant Charles Pilkey on or about May

Statement by Mr. Justice Peckham: This is an action of ejectment brought by plaintiff in error to recover certain mining "It is further stipulated and agreed that) property in the territory of New Mexico. the official printed copies of the reports of The declaration alleges that the plaintiff, the surveyor general to Congress upon said on July 10, 1893, was entitled to the pos- private land claim and all documents atsession of a certain mine, or deposit of inin-tached thereto may be used upon the trial eral-bearing rock in place, situated in the Cochiti mining district, in the county of Bernalillo and territory of New Mexico, and that while so in possession the defendants, on October 1, 1893, entered into and upon the premises and have ever since withheld the possession of the same from the plaintiff to his damage. All the defendants pleaded not guilty, while Pilkey added a further plea that he was not at the time of the com-7, 1893, entered into an agreement at Albumencement of the action in the possession of the premises or any part thereof. The plaintiff demurred to this second plea, and after argument the demurrer was overruled. The parties went to trial upon these pleadings, and after the testimony had been taken the jury, under the instructions of the court, found a verdict for the defendants. The plaintiff appealed from the judgment entered upon the verdict to the supreme court of the territory, where it was affirmed, and he

querque, New Mexico, by which they agreed to form a partnership for the purpose of discovering, locating, and operating mining claims, Pilkey agreeing to prospect and locate such veins and lodes and placers as he might discover, containing valuable ores or minerals, in the name and for the joint benefit of all the parties to the agreement, in the proportion of one-third interest to himself and an undivided two-thirds interest to the others. They were to furnish him with