SUPREME COURT OF THE UNITED STATES.

October Term, A. D. 1900.

No. 419.

FOURTEEN DIAMOND RINGS, EMIL J. PEPKE, CLAIMANT, PLAINTIFF IN ERROR, VS. THE UNITED STATES, DEFENDANT IN ERROR.

IN ERROR TO THE DISTRICT COURT OF THE UNITED STATES, NORTHERN DISTRICT OF ILLINOIS, NORTHERN DIVISION.

STATEMENT OF FACTS.

Emil J. Pepke, the claimant to the property in controversy and plaintiff in error, was born in the United States and is a citizen thereof and of the State of North Dakota. He enlisted on the 29th day of April, 1898, in Company I of the First Regiment of the North Dakota United States Volunteer Infantry, and was with said regiment assigned to duty in the island of Luzon. He continued in such military service until his regiment was ordered to San Francisco on the 31st of July, 1899. He was discharged with his regiment September 25th, 1899, at Camp Presidio, California. He was wounded at the battle of Tobac, Luzon, and his discharge is cum laude. (R., 5.)

While thus serving as a soldier in Luzon, and subsequent to the treaty of peace between the United States and the Kingdom of Spain and the exchange of the ratifications thereof, he purchased eleven diamond rings and made loans upon three others to fellow-soldiers, which were subsequently released to him, which fourteen rings he brought with him from Luzon. The plea avers that he returned with his regiment upon a United States transport vessel; that upon his discharge he proceeded to North Dakota, and from there to Chicago, Illinois, where the fourteen rings were seized by a customs officer as having been unlawfully brought into the United States.

An information was filed by the district attorney, and the court below held insufficient a plea filed disclosing these facts and claiming that the property was not subject to customs duties under the Constitution of the United States. The claimant refusing to answer further (R., 5-7), the court decreed the forfeiture and sale of the property in question. (R., 9.)

From this action of the court this writ of error is prosecuted.

ASSIGNMENT OF ERRORS.

The claimant in this action, in connection with his petition for a writ of error, makes the following assignment of errors which he avers occurred upon the trial of the cause, to wit:

First. The court erred in sustaining the demurrer of the United States to the answer of this claimant to the information filed herein.

Second. The court erred in holding that the fourteen diamonds described in the information and answer thereto purchased by this claimant in the island of Luzon subsequent to the treaty of peace between the United States and Spain, by which said island was ceded to the United States, and the proclamation thereof by the President of the United States, were subject to the customs laws of the United States and liable for seizure, because no entry under said laws was made at any port of the United States and duty paid thereon; which holding is in violation of the rights of the claimant under the Constitution of the United States in this, to wit:

A. That it denies to the claimant, a citizen of the United States and of the State of North Dakota, the rights, privileges, and immunities of citizens of other States of the United States.

B. That such seizure constituted the taking of the property of the claimant without due process of law.

C. That by article 1, section 8, clause 1, of the Constitution of the United States it is provided that all duties, imposts, and excises shall be uniform throughout the United States; that by the treaty of peace between the United States and Spain and the proclamation thereof by the President of the United States the island of Luzon became a part of the United States, and to impose a duty upon goods or merchandise purchased by the claimant subsequent to such proclamation, and brought by him into the United States as in said answer set forth, violates said provision of the Constitution.

BRIEF.

1.

BY THE TREATY OF PEACE BETWEEN THE UNITED STATES AND SPAIN SIGNED AT THE CITY OF PARIS ON DECEMBER 10, 1898, AND THE EXCHANGE OF RATIFICATIONS ON APRIL 11, 1899, THE PHILIPPINE ISLANDS BECAME A PART OF THE UNITED STATES; THE GOVERNMENT AND THE CITIZENS OF THE UNITED STATES BOTH ENTER SAID ISLANDS UNDER THE AUTHORITY OF THE CONSTITUTION, WITH THEIR RESPECTIVE RIGHTS DEFINED AND MARKED OUT; THE FORMER CAN EXERCISE NO POWER OVER THE PERSON OR PROPERTY OF A CITIZEN

OF THE UNITED STATES BEYOND WHAT THAT INSTRUMENT CONFERS, NOR LAWFULLY DENY ANY RIGHT WHICH IT HAS RESERVED.

New Orleans v. United States, 10 Pet., 662, 737.
Insurance Companies v. Canter, 1 Pet., 511, 542.

Lessee of Pollard's Heirs v. Kibbe, 14 Pet., 353, 376, 377.
Johnson && Graham's Lessee v. McIntosh, 8 Wheat., 543, 589, 590.

Dred Scott v. Sandford, 19 How., 398, 447, 448.

United States, Lyon, et al. v. Huckabee, 18 Wall., 414, 434.

Mormon Church v. United States, 136 U. S., 1, 42, 43.

United States v. Percheman, 7 Pet., 51.

Delassus v. United States, 9 Pet., 117.

Mitchel v. United States, 9 Pet., 711.

Strother v. Lucas, 12 Pet., 410, 438.

Calvin's Case, 7 Coke, 17.

Penn v. Lord Baltimore, 1 Ves., 445.

Fong Yue Ting v. United States, 149 U. S., 716, 738.

Cross v. Harrison, 16 How., 164.

Fleming v. Page, 9 How., 603.

National Bank v. Yankton County, 101 U. S., 129, 133.

Morris v. United States, 174 U. S., 196, 237.

"City of Panama," 101 U. S., 453, 460.

Pollard v. Hagan, 3 How., 212, 225.

Leitensdorfer et al. v. Webb, 20 How., 176.

Murphy v. Ramsey, 114 U. S., 44, 45.

Chicago & Pacific Railway Co. v. McGlinn, 114 U. S., 542, 546.
Springville v. Thomas, 166 U. S., 707, 708.

American Publishing Co. v. Fisher, 166 U. S., 464, 466.
Thompson v. Utah, 170 U. S., 343, 347, 348.
Capital Traction Co. v. Hof, 174 U. S., 1, 5.
Loughborough v. Blake, 5 Wheat., 317, 319.

II.

BEING A PART OF THE UNITED STATES, THE PHILIPPINE ISLANDS ARE SUBJECT TO THE PROVISIONS OF CLAUSE 1, SECTION 8, ARTICLE 1, AND OF CLAUSES 5 AND 6, SECTION 9, ARTICLE I, OF THE CONSTITUTION OF THE UNITED STATES. AND AS THERE IS NOTHING DIF

FERENTLY STIPULATED IN THE TREATY WITH RESPECT TO COMMERCE,
IT BECAME INSTANTLY BOUND AND PRIVILEGED BY THE LAWS WHICH
CONGRESS HAD PASSED TO RAISE A REVENUE FROM DUTIES ON IMPORTS
AND TONNAGE.

Loughborough v. Blake, 5 Wheat., 317.
Cohens v. Virginia, 6 Wheat., 264, 414.

Talbott v. Silver Bow County, 139 U. S., 438, 444.

Knowlton v. Moore, 178 U. Š., 41, 88.

Gibbons v. District of Columbia, 116 U. S., 404, 407, 408.

Dred Scott v. Sandford, 19 How., 398, 450.

Crandall v. State of Nevada, 6 Wall., 35, 48, 49.

Slaughterhouse Cases, 16 Wall., 73.

President's Message (1899), 50.

United States v. Dickinson, 15 Pet., 161.

Cross v. Harrison, 16 How., 164.

Synopsis of Treasury Decisions (1868), 10, 20.

III.

THE PRESIDENT OF THE UNITED STATES HAS NO LEGISLATIVE POWER. THE IMPOSITION OF CUSTOMS DUTIES UPON COMMERCE BETWEEN THESE ISLANDS AND OTHER PARTS OF THE UNITED STATES

AFTER THE TREATY OF PEACE AND EXCHANGE OF RATIFICATIONS BY
EXECUTIVE ORDER IS WITHOUT LAWFUL AUTHORITY, AND THE SEIZ-
URE OF THE PROPERTY OF THE PLAINTIFF IN ERROR, A CITIZEN OF
THE UNITED STATES, UNDER SUCH PRETENDED AUTHORITY, CONSTI-
TUTES A TAKING OF HIS PROPERTY WITHOUT DUE PROCESS OF LAW.

United States v. Eaton, 144 U. S., 677.
Cross v. Harrison, 16 How., 164.
Campbell v. Hall, Cowper, 204, 208.

Bancroft, History of United States, vol. 3, 166.