The sun. (Wilmington, Del.) 1897-19??, 1901-05-28

buildings, have that eHecr. WIN an
act establishing n complete local gov
ernment hut with the reservation of
right to collect duties upon commerce.
be adequate for that purpose? None
Of these nor all together will he suffi-
.ient II the contention of the govern
ment he sound, since acts embracing
all these provisions have been passed
N connection with Porto Rico. and it Is
insisted that It is still foreign coun-
Try within the meaning of the tariff
laws. We are unable to acquiesce in
this assumption that territory may
be Mt the same time both foreign anG
domestic.
1--WE are therefore OF opinion that at
the time these duties were levied Porto
Rico was not Il foreign country within
the meaning of the tariff laws, but a
territory of the United States; that the
duties were Illegally cNactcd and that
the plaintiffs are entitled to recover
them back.
The judgment of the circuit court
for the southern district Of New York
is therefore reversed and the case re-
manded to that court for further pro-
ceedings in consonance with this opin.
lon."
Authority of Congress.
In the course of his reasoning on the
manner of the acquisition of Porto Ri
40 Justice Brown held that congress
has authority to control such territory.
Indeed 1t is" he said. scarcely toe
much to say that there has not been a
session of congress since the territory
of Louisiana was purchased that that
body has not enacted legislation based
upon the assumed authority to govern
and control the territory. 1t is an au-
thority which arises not necessarily
from the territorial clause of the con-
stitution. but from the necessities OF
the case and from the inability of the
states TO act upon the subject,
Under this power congress may deal
with territory acquired by treaty: may
administer its government rs IL does
that of the District of Columbia: II may
organize n local territorial government
il may admit II as n state upon equali-
~ with other states: it may sell It's
public ownings to individual citizens or
may donate them ms homestcnds to ac-
| tual settlers. In short when once nc
| quircd by treaty il belongs TO the init
ed States and is subject to the DISPOSE
ton Of congress.
TERRITORY thus acquired can remain
foreign country under the tariff laws
only upon one of two theories either
that the word foreign applies to such
countries as were foreign III the time
| the statute was enacted. notwithStand
| ing any subsequent change in their
condition, or that they remain foreign
under the tariff laws until congress
has formally embraced them within the
customs union of the states.
"'rhe first theory Is obviously unten.
able. While statute is presumed to
speak from the time Of its enactment
il embraces all such persons or things
as subsequently fall within its scope
and ceases to apply 10 such as there
after fall without its scope.
THE theory that n country remains
foreign with respect 10 the tariff laws
until congress has acted by embracing
J it within the customs union presiip
| poses that a country may be domestic
| for one purpose and foreign for an
other. 1t may undoubtedly become
necessary for the adequate administers
ton Of a domestic territory to pass 9
special act providing the proper ma
chinery and officers, as the president
would have no authority. except under
the war power. to administer ii him
self: but no act is necessary to make il
domestic territory if once it has beer
coded to the United States. We OK
press no opinion as TO whether con
gress is bound to appropriate I'll,
money to pay for it,"
Four Justices Dissent.
Justice McKenna delivered the dis
senting opinion Of the supreme cour
III the inSular cases. He was Joined il
that opinion by Justices Shiras AM
White. Justice Gray also dissente,
from the majority opinion.
Justice Mcllenna went into a detail
ell examination of the cases cited il
the majority opinion. He maintaine,
that they did not show Il clear currcn
of decision. but disclosed much Iii
rergence Of views. He referred ais
to the fact that preccdents not in con
sonance with the majority view wcr
I now dismissed aS dictum and not bind
ing opinion.
He spoke Of the dangers attcndin
the dismissal of judicial opinion Il
/ "dictnln" and Of the greater DANCE
when such course may interfere O
+. had interfrrrd with the action of n ma
ton. Consistency and certainty of jud
, rial opinion were Of the highest III
portance, the Justice declared, and the
| should not be like Abe calculations q
/ a marsh. shining mtstily."
p Justice McKenna's examination q
| the many precelents was exhaustiv,
and almost an hour was given to show
ing to what extent the circumstance
i of each ease bore OH the present cond
!. ton in Porto Rico.