SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1900.

No. 515.

GEORGE W. CROSSMAN ET AL., &C., VS. THE UNITED STATES.

BRIEF FOR APPELLANTS.

STATEMENT OF THE CASE.

On the 26th day of April, 1900, the appellants, George W. Crossman et al., constituting the firm of W. H. Crossman & Bro., merchants, of the city of New York, made entry for consumption at the customhouse, in the city of New York, of certain merchandise (Record, fol. 8). The merchandise consisted of certain whiskey, brandy, and jam (fol. 9). The articles had been brought from the Hawaiian Islands. They were assessed for duty by the collector of the port of New York under the appropriate provisions for the articles respectively in the tariff act of July 24, 1897, commonly known as the Dingley tariff act. It is conceded by the appellants that if the articles were dutiable under said act at all, the provisions selected by the collector were the proper ones, and therefore no disputed question of classification under conflicting provisions of the Dingley Act arises in this case.

Against the action of the collector in assessing any duties whatever upon this importation the importers duly protested. Their protest appears in the record (fols. 9 and 10). Stripped of formal verbiage, it claimed that the Hawaiian Islands, whence these goods had been brought, were a part of the United States, and that therefore no duty could be lawfully assessed upon goods brought from the islands to New York; that the islands had been annexed and made part of the territory of the United States by joint resolution of Congress of July 7th, 1898 (30 U. S. Stat. at Large, 750); that so much of said joint resolution as provided that "until legislation shall be enacted extending the United States customs laws and regulations to the Hawaiian Islands, the existing customs relations of the Hawaiian Islands with the United States and other countries shall remain unchanged" was unconstitutional and void as being in conflict with the provision of subdivision 1, section 8, article 1 of the Constitution of the United States that "all duties, imposts, and excises shall be uniform throughout the United States," and also with subdivision 5, section 9, article 1 of the Constitution of the United States that "no tax or duty shall be laid on articles exported from any State."

The Board of United States General Appraisers, to whom the collector transmitted the protest, in pursuance of section 14 of the customs administrative act of June 10, 1890, overruled the same. stantially, they held that the question involved was one of great moment,

not free from doubt, which would ultimately have to be decided by this court, and that they were following a well-settled practice in deciding any doubts in favor of the constitutionality of the statute. Their opinion appears in the record (folios 13 to 16).

The importers filed a petition for a review in the United States circuit court for the southern district of New York, in pursuance of section 15 of the customs administrative act (fols. 1 to 3).

The Board of Appraisers thereupon transmitted the record to said court, which, after hearing argument, affirmed the action of the board. The opinion of the court appears at folios 17 to 20. Substantially, the learned judge (Townsend) took the same position as the Board of General Appraisers-that this court would pass upon all the questions, and that in the meantime doubts as to the constitutionality of the law should be resolved in favor of its validity.

A judgment, decree, or decision was entered upon this opinion (fol. 22), and an appeal allowed by the circuit court (fol. 23), which appeal now comes before this court for argument and decision.

PROVISIONS OF LAW TO BE CONSIDERED.

The joint resolution annexing the Hawaiian Islands is as follows: "Whereas the Government of the Republic of Hawaii having in due form signified its consent, in the manner provided for by its constitution, to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings, or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining: Therefore,

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That said cession is accepted, ratified, and confirmed, and that the said Hawaiian Islands and their dependencies be, and they are hereby, annexed as a part of the territory of the United States and are subject to the sovereign dominion thereof, and that all and singular the property and rights herein before mentioned are vested in the United States of America.

"The existing laws of the United States relative to public lands shall not apply to such lands in the Hawaiian Islands; but the Congress of the United States shall enact special laws for their management and disposition: Provided, That all revenue from or proceeds of the same, except as regards such part thereof as may be used or occupied for the civil, military, or naval purposes of the United States, or may be assigned for the use of the local government, shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.

Until Congress shall provide for the government of such islands all the civil, judicial, and military powers exercised by the officers of the existing government in said islands shall be vested in such person or persons, and shall be exercised in such manner as the President of the United States shall direct; and the President

shall have power to remove said officers and fill the vacancies so occasioned.

The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded, between the United States and such foreign nations. The municipal legislation of the Hawaiian Islands, not enacted for the fulfilment of the treaties so extinguished, and not 'inconsistent with this joint resolution, nor contrary to the Constitution of the United States nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine.

Until legislation shall be enacted extending the United States custom laws and regulations to the Hawaiian Islands the existing customs relations of the Hawaiian Islands with the United States and other countries shall remain unchanged.

The public debt of the Republic of Hawaii, lawfully existing at the date of the passage of this joint resolution, including the amounts due to depositors in the Hawaiian Postal Savings Bank, is hereby assumed by the Government of the United States; but the liability of the United States in this regard shall in no case exceed four million dollars. So long, however, as the existing government and the present commercial relations of the Hawaiian Islands are continued as herein before provided, said government shall continue to pay the interest on said debt.

There shall be no further immigration of Chinese into the Hawaiian Islands, except upon such conditions as are now or may hereafter be allowed by the laws of the United States; and no Chinese, by reason of anything herein contained, shall be allowed to enter the United States from the Hawaiian Islands.

The President shall appoint five commissioners, at least two of whom shall be residents of the Hawaiian Islands, who shall, as soon as reasonably practicable, recommend to Congress such legislation concerning the Hawaiian Islands as they shall deem necessary or

proper.

SEC. 2. That the commissioners hereinbefore provided for shall be appointed by the President, by and with the advice and consent of the Senate.

SEC. 3. That the sum of one hundred thousand dollars, or so much thereof as may be necessary, is hereby appropriated, out of any money in the Treasury not otherwise appropriated, and to be immediately available, to be expended at the discretion of the President of the United States of America, for the purpose of carrying this joint resolution into effect.

Approved July 7, 1898."

The Dingley tariff act under which the duties were assessed begins with the following enacting clause:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That on and after the passage of this act, unless otherwise specially provided for in this act, there shall be levied, collected, and paid upon all articles imported from foreign countries, and mentioned in the schedules herein contained, the rates of duty which are, by the schedules and paragraphs, respectively prescribed, namely.'

CONTENTIONS OF APPELLANTS.

The appellants rely on the following propositions:

1. At the time of the importation of these goods the Hawaiian Islands, having been, by the action of Congress approved by the President, annexed as part of the territory of the United States, were not a foreign country within any sense of that term, and certainly not within the sense of that term as used in the enacting clause of the Dingley Tariff Act.

2. The action of Congress in providing in the joint resolution of annexation that the customs relations of the Hawaiian Islands with the United States and with other countries should remain unchanged until Congress should further legislate on the subject was a violation of the provision of the Constitution that "all duties, imposts, and excises shall be uniform throughout the United States."

3. As such joint resolution provided for the collection at the ports of the Hawaiian Islands of duties upon articles sent thither from other ports of the United States, this was, in effect, a violation of the provision of section 9 of the Constitution, that "no tax or duty shall be laid on articles exported from any State."

DIFFERENCE BETWEEN THIS CASE AND OTHERS NOW BEFORE THE COURT.

The cases recently argued before the court, and others about to be argued, and this case all involve in a general way the question of the status of the newly acquired territory under the Constitution of the United States and the extent to which the people in such newly acquired territory become clothed by the fact of annexation with the immunities and privileges of citizens of the United States. But there are certain features in which this case differs widely from the cases heretofore argued, and some points in which it differs from any of those not yet argued before the court. And it is deemed important at the outset to call attention to these points of difference, as the result may be to simplify and abbreviate the argument. Attention is therefore invited to the following points:

I. There is no question involved in this case as to the force and effect of a treaty or the interpretation of a treaty. These islands were not annexed by treaty. A treaty was pending before the Senate at the time of the annexation, but had not been ratified, presumably because the necessary two-third vote could not be obtained for that purpose. As annexation by joint resolution could be carried by a majority vote in each House, that form of annexation was adopted. The Government of the Republic of Hawaii had ceded all rights of sovereignty absolutely and without reserve to the United States of America and the Congress of the United States had accepted, ratified, and confirmed said cession. These cases therefore differ absolutely from the Goetze and Pepke cases in that there had been at the time of the importations in those cases no legislation with reference to the status of Porto Rico or the Philippines by Congress (indeed, there has been none yet as regards the Philippine Islands).

II. There is no question in this case, as there has been in other cases, of military government. The Hawaiian Islands were never under military government after their annexation to the United States. The cession was peaceful and unquestioned. The existing civil government was continued in operation and, therefore, none of the principles