Evening star. [volume] (Washington, D.C.) 1854-1972, 1901-05-27
THE .IHUtAR CASES
Continued from First Page.)

Soohliy ioE the Oeneht or IFS government
be sufficient? Apparently not. Win acts
making appropriations for its postal ser
vice, for the Establishment of light houses,
Tor the maintenance Of quarantine sta
tnn Tor sresting public buildings. have
tnat erect! VIII an act establishing
complete local. government. but with the
reservation OF a right to collect duties upon
commerce, be adequate for that purpose!
sufficient If the contention of the govern
ment be sound. since acts embracing all
these provisions have been passed In con-
nection with Porto Rico, and 1t is in
sisted that 1t Is still a foreign country
within the meaning of the tariff laws.
we are unable to acquiesce In this conten-
ton that territory may be at the same
time both foreign and domestic
single further point remains to be con-
sidered: 1t is insisted that an act of Con-
gress passed March "a, 1900. applying for
the benefit of Porto Rico the amount of the
customs revenue. received on importation
by the United States from Porto Rico since
the evacuation of Porto Rico by the Span
ish forces October 1S 1898, to January /,
1900. together with any further customs
revenues collected on importations from
Porto Rico to January T. 1900, or that shall
hereafter be collected under existing law,
is a recognition by Congress Of the right to
collect such duties as upon 1mportations
from foreign country, and recognition
of the fact that Porto Rico continued to be
foreign country until Congress embraced
WITHIN the customs union. 1t may be SER
iously questioned whether this is anything
more than recognition of the fact that
there were moneys in the treasury not sub
ject to existing appropriation laws.
ferhaps we may go further and say
that SO far as these duties were paid volun-
tarily and without protest the legality of
the payment was intended to be recognized;
but 1t can clearly have no retroactive effect
as to moneys heretofore paid under protest,
already been brought. AS the action In this
case was brought March 13. 1900 eleven
days before the act was passed, the right
to recover the money sued for could not be
taken away by a subsequent act of Con-
gress. Plaintiffs sue in assumpsit for mon
ey which the collector has in his hand
justly and equitable belonging to them. To
say that Congress could by subsequent
act deprive them Of the right to prosecute
TINS action would be beyond this power. In
any event it should not be Interpreted so as
to make 1t retroactive.
Duties Not Legal.
eve are therefore Of opinion that at the
time these duties were levied Porto Rico
was not foreign country within the
meaning of the tariff laws. but territory
of the United States. that the duties were
illegally exacted and that the plaintiffs
were entitled to recover them back.
The Judgment of the circuit court for
iore reversed and the case remanded to
that court for further proceedings, in con-
sonance with this opinion"
The above opinion was concurred in by
all the Justices of the court except JUS
tees Mckenna, Sh!ras and White A dis
senting opinion was delivered by Justice
Mckenna. this opinion being adhered to by
himself and the two other dissenting JUS
tees
The Other Cases.
In the cases of Goethe agt. the United
States and Crossman agt the United
States brought here from the circuit court
for the southern district of New York to
test in the Goethe case the validity of the
levy of duty on an importation of tobacco
from Porto Rico into the United States af-
ter the ratification of the treaty and before
the passage of the Porto Rican act, and in
the CroSsman case duty on liquors import
ed into Hawaii after annexation, but be-
fore the taking effect of the act providing
a government for Hawaii the court re-
Versed the judgments below for the reasons
cited in the DeLima case. holding the levy
of duties was unconstitutional.
Justice Brown also announced the opin-
ion of the court in the case of Dooiey VS..
the United States, Involving the validity Of
duty levied on goods imported into Porto
Rico from the United States between the
date of military occupation and the TAX
ing effect Of the Porto Rican tariff act.
The court. held that there could be no
doubt of the validity Of the duties levied by
virtue of Gen. Miles order prior to the rat
ificatfon of the treaty Of peace. 1t placed
this right on the ground of military neces-
sity.
With reference to duties levied after rat
ification of the peace treaty, the court said
different rule applied and it held these
duties invalid. Justices Gray, Shiras Nc
Kenna and White dissented, the latter de-
livering the opinion.
Dissenting Opinions.
Justice McKenna went into a detailed
examination of the cases cited In the ma
jority opinion. He maintained that they
did not show clear current Of decision.
but disclosed much divergence of view. He
referred also to the fact that presidents
not in consonance with the majority view
were now dismissed as dictum and not
binding opinion.
= He spoke Of the dangers attending the
dismissal of judicial opinion as "dictum."
and of the greater danger when such a
course may interfere or had interfered
with the action of nation. Constancy and
certainty OF Judicial opinion were Of the
highest Importance. the justice declared
and they should not be like the "exhala,
tons of marsh, shining mistily." Justice
ahchenna examination of the many prece-
uehts was exhaustive. and almost an hour
was given to showing to what extent
the circumstances Of each case bore on the
present condition in Porto Rico.
After examining cases cited by the ma
opinion proceeded on the theory that the
cession OF Porto Rico was absolute. whereas
that depended upon the treaty itself, He
referred to the effects wrought upor the
country at large by decisions limiting the
governmental authority in respect to Gus
toms. The industrial policy OF the country
might be destroyed. and those signing the
dissenting opinion could not acq:iesce in a
view that might lead to such an end In
the opinion of those dissenting, Justice Nc
Kenna said. the judgment of the circuit
court should be affirmed
Justice Gray followed with the brief an
nouncement of his dissent from the ma
jority opinion, stating that he regarded it
las irreconciiable with the opinion of the
court in former cases. as upon importa-ions
from foreign country and the recognition
of the facts that Porto Rico continuaI IN
be a foreign county until Congress- en-
braced it within the customs union. II
may be seriously questioned whether this is
anything more than a recognition Of the
fact that there were moneys in the treasurv
not subject to existing appropriation laws
Perhaps we may go farther and saw that
so far as these duties were paid yoli,nta riIv
and without protest. the legality of the nav
ment was intended to be recognized: hit II
can clearly have no retroactive effect re
to moneys heretofore paid under protest.
for which an action to recover pack had
already been brought"
Foraker Act Sustained.