#### RICHARD H. LEIGH v. THE UNITED STATES.

[No. 26991.

Decided April 20, 1908.]

*On the Proofs.*

A lieutenant of junior grade is assigned to the command of the Pam-panga in 1899. The officer cruises in the waters of the Philippine Islands during the Philippine insurrection. The question in the case is whether the vessel is operating against an enemy, thereby entitling the officer to the pay and allowances of the grade appropriate to the command.

I. The *Act 86th April, 18¡)8*(SO Stat. L., p. 865, § 7), provides that *“in time of war every officer serving with troops operating against an enemy*” shall be entitled to receive the pay and *375allowances of the grade appropriate to the command. An officer who commanded a vessel which was operating against the insurgents during the Philippine insurrection is entitled to the benefit of the statute.

II.While there was no war in the Philippine Islands during the insurrection in an international sense the insurrection was war in fact.

III.Where a decision was rendered by the court against the United States and numerous officers were paid in accordance with it, and no appeal was taken by the Government, the matter is *stM'e decisis.*

IV.Both the *Act Jfth March, 1907*(34 Stat. L., p. 1356), and the decisions of the Supreme Court make the decisions of the Court of Claims, when not appealed from, the rules by which the accounting officers are to be guided in their settlement and adjustment of like cases.

V.After the treaty of Paris Congress authorized the President to maintain the Regular Army upon the basis of “ *war*strength,” and later, by the *Act 26th May, 1901*(31 Stat. U., p. 211), appropriated for additional pay for increased rank when officers were in command by competent authority.

VI.It was not till the *Proclamation J/th July, 1902*(32 Stat. L., p. 2014), that the President declared peace to have been established.

VII.The temporary absence of an officer from the higher command to which he has been assigned by competent authority does not deprive him of the higher pay to which otherwise he would be entitled. The cases relating to war in the Philippine insurrection reviewed.

*The Reporter’s*statement of the case:

The following are the facts of the case as found by the court:

I. The claimant, Bichard H. Leigh, entered the naval service as cadet on September 6, 1887; he was promoted and reached the grade of lieutenant, junior grade, on March 3, 1899, and during the period covered by this claim, from October 20, 1899, to March 6,1900, he served in that grade.

II. From October 20, 1899, to March 8, 1900, the claimant was in command of the U. S. S. *Pampanga,*by virtue of orders issued by competent authority. ' While he was in command thereof the *Pampanga*was a vessel of the third rate, and during the period stated this vessel was cruising in and *376about the waters of the Philippine Islands. The character of the duty appears by the following extracts from the log of the *Pampanga:*

*October £9,1899.*— At 2.15 p. m., when about *lí¿*miles from San José de Buena Vista, Panay Island, observed the insurgent flag flying from a large building ashore; stood in close, and when about 1,200 yards from it a shell was fired from directly in front of this building, falling about 250 yards short and richocheting across the stern of this vessel. The crew being at quarters, this ship immediately returned the fire, firing from the starboard battery and using all the guns except the port 37 m/m. The insurgents fired three rounds from the large gun — about 4-inch — and a number of rifle shots were fired by them, these generally falling short. Their fire ceased after twenty minutes longer, the insurgent flag having been hauled down or shot down by this ship. One rifle shot hit the ship; windows in chart house and cabin broken. Expended 36 3-pdr., 373 37 m/m., 1,000 6 m/m., 200 rifle 6 m/m.

*November*6, *1899.*— At 2 p. m., in passing San José de Buena Vista, observed a number of insurgents under arms with a small field gun mounted near by.

*November 7, 1899.*— At 3 p. m., in company with the U. S. S. Concord, stood in for San José de Buena Vista, Panay; the *Concord*fired several shells into sand fort near point, doing effective work. In obedience to order of commanding officer of *Concord*stood in close with *Pampanga*to develop the fire of the insurgent soldiers. Fired from 37 m/m. colt gun and rifles. Fired upon by insurgents; ship struck five times.

*November 16,1899.*— At 10 a. m. got underway from Iloilo, with captain of *Concord*and Colonel Dickinson, U. S. Army, and staff, to inspect insurgent forts or trenches along the coast as far north as the Zaraga River; by order fired upon insurgent house on Jaro River.

*November ££, 1899.*— Went to Silay and communicated with the U. S. army officer in charge.

*November £5, 1899.*— At 10.30 a. m. came to anchor near the *Concord*off Baratok Viejo. Reported to senior officer *377present. Sighted the U. S. army transport *El Cano*with United States troops on board standing for Barnate. At 11.20 got underway in company with *Par agua*and *Concord*and stood for Barnate. At 12.35 anchored in position off Barnate, near *Paragua,*about 800 yards from points selected for troops to land to cover the landing for them. At 1 troops began to land and at 2.30 all had landed — about 500 men— without resistance.

*November 26,1899.*— Crew from *Pampanga*sent in to clear a landing place near the mouth of the Timourun Eiver. Stood in for Timourun River, protecting two army launches towing casco and lorcha of stores. At 5.30 received on board Colonel Dickinson, U. S. Army, two officers, and 60 men, and returned them to transport *El Cano.*Accompanied tugs back to *El Cano:*

*November 27,1899.*— Accompanied party to the Timourun River and awaited their return. Boats returned from river at 11.30 a. m.; accompanied them to *Concord.*

*December S, 1899.*— Anchored off Valodolid; communicated with United States Army, offering services. Got underway; went to Pandan; communicated with United States Army.

*December 4, 1899.*— Went to Bacolid and communicated with United States Army; returned to Iloilo.

*December 5, 1899.*— From Iloilo received on board two United States soldiers for passage to Azua.

*December 6, 1899.*— Anchored off Azua; went alongside the U. S. transport *El Cano*and delivered two soldiers. Insurgents on shore fired on party from *Concord.*This ship took four boats in tow loaded with United States soldiers, about 160 men, and ran close inshore near Azua for their landing. Covered landing, opened fire on insurgents on shore. After soldiers landed, returned boats to *El Cano*and received another load of troops of about the same number of men. Towed them in as before. After this cruising about the bay where services were required.

*December 7,1899.*— Accompanied U. S. transport *El Cano*to Conception. Took in landing force of United States troops and protected their landing. Two companies landed and captured the town, meeting no resistance. At 10 a. m. *378tbe captain, Lieut. R. H. Leigh, in obedience to signal, reported to General Carpenter, U. S. Army, and in compliance with Ms wishes accompanied him ashore.

*December 8, 1899.*— Got underway; communicated with IT. S. S. *Concord*and took her captain in to landing to communicate with General Carpenter, U. S. Army. At 11 with *Concord,*Paragua, and *El Cano*got underway for Estancia. Anchored near Estancia; natives came off and surrendered the town to General Carpenter, IT. S. Army.

*December 9, 1899.*— Soldiers left for interior; other ships left; *P ampanga*remained at anchor to guard the town.

*December 10, 1899.*— At anchor off Estancia helping to guard the town. An army officer and the captain went out in a boat expedition to investigate to the northward.

*December 11,1899.*— Assisted the army in reembarking the troops from Estancia. At 8.30 p. m. got underway, accompanying transport *El Cano*and stood out.

*December 12,1899.*— At 2.30 a. m. arrived off Capiz. Remained at anchor. Found that General Hughes, U. S. Army, had reached there from overland and that he was in charge.

*December 11¡., 1899.*— Assisted the disembarkation of United States troops from the *El Cano.*

*December 19,1899.*— Assisted in embarkation of troops on *El Cano.*

*December 21, 1899.*— General Carpenter, U. S. Army, and staff came aboard for passage to Romblon.

*December 22, 1899.-*— Arrived Romblon; General Carpenter and staff left ship and called on Captain MacFarlane, U. S. Army, in command.

*December 23, 1899.*— Patrolled between Romblon, Tablas, and Guimiras to prevent insurgent soldiers from escaping to these islands from Romblon.

*December 21¡., 1899.*— As for yesterday.

*December 26, 1899.*— Got underway with Captain Mac-Farlane, U. S. Army, and 10 soldiers on board; went to various ports to communicate with the natives and to inform them of the status quo.

*December 27, 28,1899.*— -The above service continued.

*January 8, 1900.*— Arrived off San José de Buena Yista, Panay; observed insurgents in trenches.

*379*January 9,1900.*— Engaged troops in trenches in obedience to orders from senior naval officer present, the captain U. S. S. *Ooncord.*

*January 10-15.*— Cruising and patrolling.

*January 16, 1900.*— Arrived off San Joaquin, Panay, and made preparations for the landing of the United States troops upon their arrival.

*January 18,1900.*— At 5.40 a. m. got underway, with the captain of the *Ooncord*and Ensign Davidson of that ship on board. Headed in for a short distance below Antigua Biver. At 6.15 sighted the advance of the United States Army, and at 6.20 this ship opened fire upon the insurgent trenches, army at same time opening fire on them; they returned the fire. Engaged them until 7.10, when stood out for the *Ooncord,*and the captain of her and Ensign Davidson returned to their ship. Steamed back to position and assisted the army, engaging the insurgents until 9.15, they keeping up the fire on this ship, which was returned slowly by the *Pampanga. Pampanga*hit by them 16 times. No damage done to ship further than broken glass. No casualties. .Range, 500 to 700 yards. Made a number of trips up and down the coast; insurgent trenches deserted. At 2.15 p. m. towed boats from *Ooncord*into San José de Buena Vista with landing party commanded by Lieutenant Davidson, U. S. Navy. This party occupied San José. While towing *Concordes*landing party, in shifting Colt gun to cover landing from starboard to port side it was accidentally discharged. The bullet struck Lieutenant B. H. Leigh, U. S. Navy, the captain of this ship, in the rear of the left shoulder and passed out in rear, inflicting a painful but not severe wound. At 5 United States Army reached San José and *Concord'1 s*landing party returned.

*January 19,1900.*— Ensign Davidson, by order of the captain of *Ooncord,*took charge of *Pampanga,*Lieutenant Leigh being under treatment for wound.

*February 9, 1900.*— Lieutenant Leigh returned to duty as captain of this ship.

*February 10 io March 6,1900.*— Cruising, patrolling, keeping open communication with United States Army at various ports of Panay.

*380III. The orders under which claimant assumed this command are as follows:

“ UNITED States Naval Force on Asiatic Station, *“Flagship Baltimore, Cavite, P.*/., *October 20,1899.*

“ Sir : When the U. S. S. *Pampanga*is in all respects ready for sea, you will proceed with the vessel under your command to Sorsogon, where the U. S. S. *Wheeling*has been directed to await your arrival, and report to her commanding officer. In the passage to Sorsogon, you will carefully observe the coast and stop all illicit trading, but will not linger at any one place.

❖ # ❖ *%*❖ *%*&

“ From Sorsogon you will proceed with dispatch to Iloilo, and report to the senior naval officer present for such duty as he may assign the *Pampanga.*

“ i ours, respectfully, *“*J. C. Watson,

*uBear-Admiral, U. S. Navy, Commander-in-Chief*

“ *U. 8. Naval Force, Asiatic Station.”*

The orders under which he was detached are as follows:

“ United States Naval Force on Asiatic Station,

“ *Flagship Broohlyn, Cavite, P.*/., *February 22,1900.*

*“*Sir : Upon the reporting of your relief, Lieutenant F. R. Payne, U. S. Navy, you will consider yourself detached from command of the U. S. S. *Pampanga,*and will proceed to Manila, P. I., reporting upon your arrival to the commander-in-chief.

“ 2. The paymaster of the *Concord*will furnish you with the necessary transportation.

“ Very respectfully, “ J. C. Watson,

“ *Pear-Admiral, U. 8. Navy, Commander-in-Chief*

*“Ü. 8. Force on Asiatic*Station.”

“ U. S. S. Zaeiro,

“ *Iloilo, P.*/., *March 8,1900.*

“ Sir : Your orders of the 22d ultimo are so far modified that upon being relieved from the command of the *Pam-panga*you will report for temporary duty to the commanding officer of the U. S. S. *Concord.*Upon arrival at Manila, P. I., you will regard yourself as detaehed from duty on board the *Concord*and will proceed, by the first available means of transportation, to Yokohama, Japan, and will report to the commanding officer of the U. S. S. *Oregon*for duty on board that vessel.

*381“ The paymaster of the *Concord*will furnish the necessary transportation from Manila, P. I., to Yokohama, Japan.

“ Very respectfully,

“J. C. Watson,

“ Rear-Admiral, Z7. *8. Navy, Commander in Chief,*

*V. 8. Naval Force on Asiatic Station.*

“ Lieut, ft. H. Leigh, U. S. Navy,

“ *Commanding U. 8. 8. Pampanga, Iloilo, P. IP*

The log book of the U. S. S. *Concord*shows that the late Lieut. William C. Davidson, U. S. Navy, was transferred from the *Concord*to the *Pampanga*for temporary command on January 19,1900, on account of the wounding of the commanding officer of that vessel by a stray bullet. The log book also shows that he returned on board the *Concord*from the *Pampanga*on February 9, 1900.

By reason of prior settlement no part of the claim for the period covered by the petition has been allowed by the accounting officers.

Neither Lieutenant Davidson nor this claimant has been allowed pay for exercising command of this ship from January 19 to February 9, 1900.

IV. The claimant received, during the period stated, the pay of a lieutenant, junior grade, at $1,800 a year. If entitled to be paid as a commander for the period named, excluding time from January 19 to February 9, 1900, the difference due would be the amount stated by the Auditor for the Navy Department, as follows:

By army sea pay as commander, corresponding in rank with. a lieutenant-colonel in the army, $3,000, with 20% increased pay for length of service from October 20, 1899, to January 18,1900, and from February 9, 1900, to March 6, 1900, 3 months 27 days, at $3,600 per annum_$1,170.00

Less pay received same period at $1,800_ 585. 00

Difference_ 585. 00

If entitled to be paid as a commander from January 19, 1900, to February 8, 1900, he is entitled to $100 additional, making a total difference due him of $685.

*Mr. George A. King*for the claimant. Messrs. *George A. db William B. King*were on the brief.

*382*Mr. George M. Anderson*and *Mr. Frederick De O. Faust*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

There can be little doubt that section 7 of the act of April 26,1898, was intended to apply to the war with Spain and to no other war and after that war became null and void. It was merely temporary legislation to meet the existing conditions.

The “ war ” referred to in the statute is evidently a war between two recognized nations of the world. In fact, the legislation was intended to meet conditions existing in the war between the United States and Spain.

The kind of war Congress intended was evidently a regularly declared war between nations. The war with Spain terminated with the ratification of the Paris treaty April 11, 1899. The services of the claimant in which he exercised higher command was during the insurrection in the Philippines, which followed some time after the close of the war with Spain.

We are not unmindful that in the case of *Warner, Barnes da Co.*(40th C. Cls. R., 1) the court practically found that the Philippine insurrection resulted in a war, but on appeal this view was not concurred in by the Supreme Court. So far as we are aware, there has been no expression of that court in the various cases that have been brought before it concerning the collection of tariff duties, or in any other case, in which it has dignified the insurrection in the Philippines as a “ war.” (See *Lincoln*v. *The United States,*197 U. S., 428.)

The case cited also decided the Warner, Barnes & Co. case, and the Supreme Court gave no weight, we think, to the finding of this court to the effect that a “ state of war ” existed in the Philippines. That conditions in the Philippines existing during the time of what we term “ the Philippine insurrection ” did not constitute a “ state of war,” as contemplated by the act of April 26, 1898, we think is clearly set forth in the act, and therefore the claimant is not entitled to recover.

In obeying his orders to stop all illicit trading it can not be said that he was “ operating against an enemy ” within the *383meaning of the statute. Undoubtedly the statute had reference to an “ enemy ” in the sense of which that term is used in connection with a well-defined war. The word “ enemy,” when referring to military operations, is defined by Webster as—

“ The opposing force — regarded as a collective noun, and construed with a verb and pronoun either in the singular or the plural.”

The term in military parlance has a well-defined and recognized meaning, a meaning that is understood by all who use the same with reference to military forces. And this is the sense in which the term is used in the statute. There is an utter failure, then, on the part of claimant to produce any evidence that he was “ serving with troops operating against an enemy,” as contemplated in the statute. There is nothing to show that any of the ports where the vessel cruised from day to day was even in a state of insurrection. During the service of claimant the Philippine Islands were the property of the United States, and had been such since the ratification of the Paris treaty, April 11, 1899. It can not be said that because one portion of a country is in rebellion, or in a state of insurrection, that necessarily the entire contiguous territory is in such state of rebellion or insurrection.

In *Lincoln*v. *The United States*(197 U. S., 428), the court said:

“Manila was not like Nashville during the civil war, a part of a State recognized as belligerant and as having impressed a hostile status upon its entire territory.” (Citing *Hamilton*v. Dillin, 21 Wall., 73, 94 — 96.)

The fact that some portion of the islands may have been in a state of insurrection and were carrying on hostilities did not necessarily impress a hostile status upon the entire Philippine Islands. Furthermore, it is a well-known fact that the insurrection was largely confined to the interior and that the different ports of the islands were practically free from having the impress of hostile territory. Therefore it can not be said that claimant was “ serving with troops operating against an enemy.”

*384The claimant, being a naval officer and serving in the navy during the time covered by the claim, can not receive the benefit of the act, unless that benefit is granted by the navy personnel act. > The statute quoted from the navy personnel act to the effect that officers of the line of the navy shall receive the same pay and allowances as officers of corresponding rank in the army, we think, can not have the force of giving the claimant the benefit of section *7*of the act of April 26, 1898.

The claimant, having exercised the command of a commander in the navy, it becomes necessary to ascertain what officer in the army ranks with commander in the navy, and, as shown by section 1466, Revised Statutes, we find that officer to be lieutenant-colonel.

Bearing in mind that the term “ command ” used in the statute under consideration refers to the commanded and not to the officer exercising the command, it would be necessary to ascertain what body of troops in the army corresponds with a vessel of the third class in the navy. There can be no such assimilation of commands. What we term “ assimilation of rank ” is clearly set forth in section 1466 of the Revised Statutes, but there is no such thing as assimilation of things commanded.

That portion of the navy personnel act which we have quoted attempts solely to give officers of the navy the same pay and allowances as are or may be provided by or in pursuance of law for officers of corresponding rank in the army.

Rank is the meeting ground of the two classes of officers for the purposes of pay; not rank of ship, nor of a body of troops, but rank of the officer. The claimant in this case is asking the pay of a lieutenant-colonel, for the reason that a commander in the navy takes rank with lieutenant-colonel in the army, and for the further reason that claimant commanded a vessel which was the appropriate command for a commander. But a lieutenant-colonel has no command, and, furthermore, there is no assimilation between the things commanded, assimilation of rank having reference entirely to the officers. Therefore we think that the navy personnel act is not applicable to the act of April 26, 1898, and hence claimant’s petition should be dismissed.

*385As will be seen from the statement, there are two claimants for the pay for commanding the *Pampanga*from January 19 to February 9, 1900, to wit, William C. Davidson and the claimant in this case.

In case the court should find ivith the Government on the main issue in this case, then the question as to pay for the above period need not be considered.

Claimant’s counsel urge in behalf of Lieutenant Leigh the decision of this court in the case of *Collins*(37 C. Cls. E., 222), and cite Navy Eegulation to the effect that—

An officer temporarily absent from a ship in commission to which he is attached shall continue to receive sea pay.

In reply, we have to say that while we agree with the court in the Collins case and recognize the full force of the regulation quoted, yet we think that the decision and the Navy Eegulation have reference solely to where officers are in permanent command, attached to the vessels and performing the service suitable to their grade, as, for instance, a commander when attached to a vessel of the third class or a lieutenant (junior grade) attached to a torpedo boat, .tug, tender, or ship not rated.

When any naval officials are attached to their appropriate command, as fixed by the regulations and by law, and are temporarily absent from duty, as in the Collins case, then we think the decision of the court and the Navy Eegulations apply. But in the case at bar the command was not the appropriate or designated command by law for lieutenant (junior grade), and therefore when he was temporarily absent by reason of sickness from such command to which he had been temporarily attached, we contend that the Collins decision and the Navy Eegulations have no application.

Peelle, Ch. J.,

delivered the opinion of the court:

The question in this case arises under the act of April 26, 1898, section 7 (30 Stat. L., 365), which provides:

“ Sec. 7. That in time of war every officer serving with troops operating against an enemy who shall exercise, under assignment in orders issued by competent authority, a com*386mand above that pertaining to his grade, shall be entitled to receive the pay and allowances of the grade appropriate to the command so exercised: *Provided,*That a rate of pay exceeding that of a brigadier-general shall not be paid in any case by reason of such assignment * *

The claimant, a lieutenant, junior grade, was assigned to the command of the U. S. S. Pamyanga, a vessel of the third rate, entitling him to the pay of a commander if such service be held “ in time of war ” within the intent and meaning of said statute.

In the *Thomas case*(39 C. Cls. R., 1), decided in January, 1908, the court fully considered this question, and also the right of the claimant, a naval officer, by virtue of section 13 of the act of March 3, 1899 (30 Stat. L., 1007), to the same pay for such service as that of an officer of the army of corresponding rank. The court, following the action of the War Department, held, in effect, that while there was no war in the Philippine Islands in a technical or international sense, the insurrection was such as to amount to war in fact, as there were frequent conflicts between the troops of the United States and the troops of the insurrectionists and many officers and men were killed and wounded on both sides. The statistics show that there were more losses in such conflicts than there were in the Spanish war.

That decision, we are advised, has been followed by the accounting officers, and nearly or quite all those entitled to extra pay for service while exercising a higher command have been paid; and it would seem, therefore, that as no appeal was taken from the judgment in that case the decision should now be regarded as *stare decisis (Meig's*case, 20 C. Cls. R., 181; *Robertson*v. Edelhoff, 132 U. S., 614; *Hartranft*v. Meyer, 149 Ib., 444).

As was said by the Supreme Court in *O'Grady's case (22*Wall., 641, 648), affirming the judgment of this court (8 C. Cls. R., 451), “ the judgment of the Court of Claims, from which no appeal is taken, is just as conclusive under existing laws as the judgment of the Supreme Court, until it is set aside on a motion for a new trial; ” and by the act of March 4, 1907 (34 Stat. L., 1356), it is provided “ that in all cases hereafter so certified the said accounting officers shall, in. *387stating balances, follow the decisions of the United States Supreme Court or of the Court of Claims of the United States after the time for appeal has expired, if no appeal be taken, without' regard to former settlements or adjudications by their predecessors.” Thus, by express legislation as well as the rulings of the Supreme Court, the decisions of the Court of Claims, when not appealed from, furnish the rules by which the accounting officers are to be guided in their settlement and adjustment of like cases.

Furthermore, after the signing of the treaty of Paris, Congress authorized the President to maintain the Regular Army upon the basis of “war strength;” and later, in the army appropriation act, approved May 26,1901 (31 Stat. L., 211), they appropriated $50,000 “ for additional pay for increased rank when in command by competent authority,” with a proviso thereto “ that no part of this sum shall be used for pay of officers assigned to higher command than their rank in the army,' unless such service shall be continuous for a period of not less than three months.”

It was not until July 4, 1902, that the President, by proclamation (32 Stat. L., 2014), declared peace to have been established in all parts of the archipelago, except with the Moro tribes.

Now, while the insurrection can not be designated as war in a technical or international sense, the hostility of the insurrectionists was manifested in the most effective way known — i. e., resort to arms; and, as stated by the President in his proclamation, those “ engaged therein, or those in sympathy with and abetting them, committed many acts in violation of the laws of civilized warfare.”

The purpose of the act in giving increased pay to those assigned to commands above that pertaining to their respective grades was evidently because of the increased danger incident thereto. Measured by that test, the claimant should recover, as the vessel he commanded was engaged in actual combat with the insurgent forces and was hit sixteen times, while the claimant himself was wounded in the left shoulder and was compelled to undergo treatment for a period of about three weeks before he could resume command of the *388vessel. His temporary absence, however, does not deprive him of the pay to which he was otherwise entitled during such temporary absence, as was held by this court in the *Collins case*(37 C. Cls. B., 222).

The defendants in effect concede the law as herein stated unless by the rulings in the case of *Lincoln*v. *The United States*(197 U. S., 419) the Supreme Court has in effect overruled the decision in the *Thomas case,*supra, to the effect that no war existed in the Philippine Islands.

That case involved the refund of import duties collected in the port of Manila under the order of the President of July 12,1898, after the exchange of ratifications of the treaty between the United States and Spain, April 11, 1899.

The order of the President was issued while war with Spain was -flagrante, and, as said by the court, “ the natural view would be that the order expired by its own terms when the war with Spain was at an end. * * * It was a regulation for and during an existing war, referred to as definitely as if it had been named.”

The court also held that the case was ruled by the decision in the *Fourteen Diamond Ring Case*(183 U. S., 176, 180, 181), where it was held “that after the title passed to the United States there was nothing in the Philippine insurrection of sufficient gravity to give to the islands the character of foreign countries within the meaning of a tariff act.” That is to say, the insurrection was not of sufficient magnitude or of such firm possession by the insurgents as to baffle the military forces of the United States, though by their desultory fighting they prolonged the establishment of peace until the proclamation of the President, July 4,1902, a period of more than three years.

The decision in that case rested on the ground that the order of the President was “ intended to deal with imports from foreign countries only and Philippine ports not in the actual military control of the United States.” “ But,” says the court, “ the fact that there was an insurrection of natives not recognized as belligerents in another part of the island or even just outside its walls, did not give the President power to impose duties on imports from a country no longer for*389eign.” Hence the question whether there was or was not war at the time such duties were collected was not material to the decision in that case and can not, therefore, be considered as affecting the ruling in the Thomas case.

We may add that in the later case of the *United States*v. *Heinssen & Co.*(206 U. S., 370) the court in effect overruled the decision in the case of *Lincoln*v. *United*States, supra, on the ground that the ratifying act of Congress June 30, 1906, in unambiguous and explicit terms ratified the collection of duties imposed on imports “ subsequent to the ratification of the treaty and prior to the levy by Congress of tariff duties,” holding that it was within the power of Congress by the act to ratify the collection of duties levied under the order of the President.

For the reasons stated the claimant is entitled to judgment in the sum of $685.