The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-05-27
CONSTITUTION FOLLOWS THE FLAG.

government as II does that OF the lJ1S-
trict OF Colurnbia; it may organize a To-
cal territorial government; it may adj
init lit as a state upon equality with 9th
er states; it may sell its public OW ningS
to individual citizens, or may donate
them as homesteads to actual settlers.
In short when once acquired by treaty,
it belongs to the United States and is
subject to the disposition 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 We're foreign at the time
the statute was enacted, notwithstand-
ing any subsequent change in their con-
dition, or that they remain foreign un-
der the tariff laws until congress has
formally embraced them within the GUS
toms union Of the states. The first the
ory is obviously untenable. While
statute is presumed to speak from the
time Of its enactmen it embraces all
such persons or things as subsequently
fall within its scope and ceases to apply
scope
.TThe 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 ex-
cept 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 con
greSS is bound to appropriate the money
to pay for it. This theory also presup-
poses that territory may be held indef-
initely 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 inSurrec-
tions may be suppressed, wars carried
on, revenues collected, taxes imposed (;
which a government can do within its
own boundaries and yet that the terri
tory may still remain in a foreign coun-
try. That this state of things may be
for years, for a century even, but that
until congress enacts otherwise, will
still remain a foreign country. To hold
that this can be done as matter of law
we deem to be pure judicial legislation.
We find no warrant for it in the conSti-
tuition, or in the powers conferred upon
this court. It is true the nOn-actiOn Of
congress may occasion a temporary in
convenience; but it does not follow that
courts of justice are authorized to rem
edy it by inverting the ordinary mean
ing of words
"A single further point remains to be
considered: 1t is insisted that an act
of congress, passed March "A, 1900 (31
Stat 151), applying for the benefit of
Porto Rico the amount of the customs
revenue received on impOrtations by
the United States from Porto Rico
since the evacuation of Porto Rico by
the Spanish forces October is, 1888. to
January /. 1900, together with any fur
ther customs revenue collected on i'm
portations from Porto Rico since Janu-
airy 1. 1900, or shall hereafter be col
1ected under existing law, is recOgni-
ton by congress of the right to collect
such duties as upon impOrtatiOns from
a foreign country. and the recognition
of the facts that Porto Rico continued
to be a foreign country until congress
embraced it within the customs union.
It may be seriously questioned whether
this is anything more than a recogni-
tion OF the fact that there were
moneys in the treasury not subject to
existing appropriation laws. Perhaps
we may go farther and say that, SO far
as these duties We're paid voluntarily
and without protest. the legality of the
payment was intended to be recog-
nized but it can clearly have no retro
active effect as to moneys heretofore
paid under protest, for which an action
to recover back had already been
brought