IN THE SUPREME COURT OF THE UNITED STATES.

October term, 1900.

No. 509.

CARLOS ARMSTRONG, APPELLANT, VS. THE UNITED STATES, APPELLEE.

APPEAL FROM THE UNITED STATES COURT OF CLAIMS.

BRIEF FOR APPELLANT.

STATEMENT OF FACTS.

Carlos Armstrong, the appellant, was at the time this action accrued and now is a subject of the Queen of Great Britain, and has never renounced or forfeited his allegiance to the sovereign of that Kingdom; and he sues in the Court of Claims under authority of section 1068 R. S. U. S., which provides that—

"Aliens, who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts, shall have the privilege of prosecuting claims against the United States in the Court of Claims, whereof such court, by reason of their subject-matter and character, might take jurisdiction."

The allegations in the amended petition set up the fact that Great Britain does grant to citizens of the United States the right to prosecute claims against that Government.

He sues for money improperly collected of him, as he alleges, and which has been paid into the United States Treasury.

On this point the Mosby Case, 133 U. S., page 273, is cited as authority for this action.

See also Lawson's Case, 104 U. S., 164.

At the times mentioned in the petition said appellant was a merchant doing business at Ponce, in the island of Porto Rico. For the purpose of carrying on said business he imported directly from other ports of the United States into Porto Rico articles and merchandise of the growth, produce, or manufacture of the United States, or which, if grown, produced, or manufactured in other countries, had been regularly entered in ports of entry of the United States and lawful duties paid thereon.

Prior to the 12th day of August, 1898, a state of war existed between the Kingdom of Spain and the United States of America. Prior to said date the island of Porto Rico belonged to the Kingdom of Spain as a colonial possession thereof and had been for a long time prior to said date under the sovereignty of the Kingdom of Spain, which had there established a civil government, and said government had enacted among other laws certain tariff or customs duties upon imports into the island of Porto Rico from the United States and other countries, and such Spanish or Porto Rican tariff or customs laws were enforced at the seizure and occupation of said island by the military and naval forces of the United States in the month of July, 1898. On the 12th day of August, 1898, a protocol providing for the cession of the island of Porto Rico to the United States and for a treaty of peace between the Kingdom of Spain and the United States of America and for the cession of the island of Porto Rico to the United States was signed by the representatives of both Governments. Thereafter, and on the 10th day of December, 1898, the treaty of peace was entered into and signed by the duly authorized representatives of both Governments.

On the 6th day of February, 1899, said treaty was ratified by the Senate of the United States, and was thereafter ratified by the Queen Regent of Spain on the 19th day of March, 1899, and by the Spanish Cortez, and ratifications thereof were exchanged at the city of Washington on the 11th day of April, 1899, and on the same day proclaimed by the President.

Prior to the signing of the said protocol, and in the month of July, 1898, after the first landing of the military forces of the United States upon the island of Porto Rico, there were some skirmishes between the United States forces and the Spanish stationed on the said island, but all hostilities of every kind ceased from and after the 12th day of August, 1898, the date of the signing of the protocol, and from that date down to the present time there have been no hostilities of any kind upon said island, and no military operations have been conducted by the United States forces against the Spanish forces or against any other hostile force on the island, but immediately upon the signing of the said protocol, and as therein provided, the island was abandoned by Spain and her possession and sovereignty thereof relinquished, and all the Spanish naval and military forces were immediately withdrawn and the island was evacuated, and all public property thereon was delivered to and taken possession of by the United States under said protocol, and said island has ever since been and now is in peaceable possession and under the sovereignty of the United States, and since the 12th day of August, 1898, the island has been and now is in a con dition of peace, and the inhabitants thereof have been in the enjoy ment of civil rights, except as such rights have been affected by certain orders of the President and of the War Department and of the military forces of the United States, more particularly the orders for the col

lection of duties herein referred to.

Under the terms of a certain proclamation of Major-General Miles, commanding the United States military forces in Porto Rico, the former Spanish and Porto Rican customs and tariff laws were continued in operation, and duties on exports from the United States into said island were collected thereunder in that part of the island then

occupied by the military forces of the United States from the 26th day of July, 1898, until the 19th day of August, 1898.

On the 19th day of August, 1898, customs tariff and regulations for ports in Porto Rico in possession of the United States were promulgated by an order of the President of the United States, and duties were collected thereunder until the 1st day of February, 1899.

On the 1st day of February, 1899, the amended customs tariff and regulations for ports in Porto Rico were promulgated by an order of the President of the United States as a tariff, fixing and providing for the collection of duties upon imports into Porto Rico from all ports of the United States, as well as from foreign countries, and thereafter duties were collected under the said amended customs tariff and regulations, and amendments thereof were made from time to time by the order of the President.

During the period from the 12th of August, 1898, until the 5th day of December, 1899, the imposition and collection of customs duties upon all imports into the island of Porto Rico from various ports of the United States, including the imports of the appellant from the ports of New York, Baltimore, and Philadelphia, and upon all exports from said ports of the United States, including the goods exported to the appellant from the ports aforesaid to the island of Porto Rico, were in fact made and enforced, levied, and collected by the War Department and the military forces of the United States. No part of said customs duties collected during the aforesaid period under the Spanish tariff and under the proclamation of Major-General Miles and under the customs tariff and regulations and amended customs tariff and regulations was levied or collected by the Treasury Department of the United States or by any of the civil authorities of the United States.

All the duties so collected by the War Department and military authorities, including those paid by the appellant upon imports into Porto Rico from the United States, and exports from the United States into Porto Rico, are now in the possession of and held by the United States of America.

Between the said dates of August 12, 1898, and December 5, 1899, the appellant in conducting his business, purchased in other ports of the United States, to wit, New York, Baltimore, and Philadelphia, and ordered on consignment from said ports, certain goods, wares, and merchandise necessary to his business, which were the growth, produce, or manufacture of the United States, or if of the growth, produce, or manufacture of a foreign country had been duly entered and lawful duty paid thereon in some one of the other ports of entry of the United States. Said goods, wares, and merchandise so purchased and consigned were shipped directly to the port of Ponce, Porto Rico.

On the arrival of said goods, wares, and merchandise into the port of Ponce, Porto Rico, the same were regularly entered by the appellant, as required by the military officers of the United States and by the customs regulations made by the President, and were taken into the possession and custody of the United States, and on such portions as were received prior to February 1, 1899, duties and taxes were charged and collected under orders promulgated by the President of the United States, and on such portions thereof as were received after February 1, 1899, duties and taxes were charged in accordance with a certain

H. Doc. 509- -56

amended order, rules and regulations and schedules, made and issued by the President of the United States, dated January 20, 1899, and promulgated by the War Department.

The surrender and delivery of said goods was refused appellant by the officers and agents of the United States unless and until he should pay the duties and taxes thereon.

Said officers and agents of the United States demanded and collected of the appellant, against his protest and over his objection, duties and taxes on said goods, and he, in order to obtain his said goods, and to continue to carry on his business, was compelled to, and did, pay duties and taxes as above mentioned to said officers and agents at the port of entry of Ponce, Porto Rico, at the dates and for the goods. wares, and merchandise, and in the several sums, set out in the schedule marked "Schedule A," and which was annexed to and made a part of his amended petition in the Court of Claims. Said taxes and duties so paid amount to the total sum of thirty-one thousand five hundred and thirty dollars and sixty-five cents ($31,530.65), and the money so collected was received into the Treasury of the United States. No part of the said duties and taxes has ever been repaid to the appellant by the United States. He has demanded the same and payment has been refused.

The appellant claims that the imposition and collection of duties and taxes aforesaid were in violation of the rights and privileges secured to him under the Constitution and laws of the United States, and also that the imposition and collection of said duties are in violation of the treaty of peace between the United States and Spain. Article 9 of said treaty provides that:

"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to other foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they reside."

The appellant brought suit in the Court of Claims to recover the amount of said duties and taxes paid by him. The original petition was filed on the day of 1. Afterwards, on the 13th day of November, 1900, the appellant by leave of the court, filed an amended petition, which is made a part of the record in this case. To this amended petition the United States, by its Attorney-General, filed a demurrer on the ground, to wit, that the Court of Claims has no jurisdiction, and, secondly, that the statements contained in the amended petition do not state facts sufficient to constitute a cause of action or entitle the appellant to recover.

The case was heard in the Court of Claims on the demurrer; and on the 10th day of December, 1900, that court rendered a decision

sustaining the demurrer upon the second ground thereof, and holding that the amended petition does not state facts sufficient to constitute a cause of action, and dismissing the same.

From the judgment of that court Armstrong took an appeal to the Supreme Court of the United States, which was allowed, and the appeal perfected, and the case is now before this court for its consideration.

ASSIGNMENT OF ERRORS.

The claimant in this action makes the following assignment of errors: First. The court erred in sustaining the demurrer of the United States to the appellant's amended petition.

Second. The court erred in holding that the goods, wares, and merchandise of the appellant were subject to the payment of a duty or tax. Third. The court erred in holding that the island of Porto Rico is no part of the United States, and that the appellant and his property and business are not entitled to the protection of the Constitution of the United States.

Fourth. The decision and judgment of the court are in violation of the rights of the appellant in this, to wit:

(a) That the property and money of the appellant were taken from him without due process of law.

(b) That by article 1, section 8, clause 1, of the Constitution of the United States, it is provided that duties, imposts, and excises shall be uniform throughout the United States; that by the protocol and treaty of peace between the United States and Spain the island of Porto Rico became a part of the United States, and to impose a duty upon goods, wares, and merchandise, purchased by claimant in and brought from other parts of the United States, violates the claimant's constitutional rights, and denies to him the equal protection of the laws.

Sixth. The order issued by the President as Commander in Chief of the military forces, requiring the levying and collection of duties upon appellant's property by military officers is unconstitutional and void. Seventh. Judgment should have been rendered in favor of the claimant and against the United States.

BRIEF AND ARGUMENT.

I.

THE CONSTITUTION OF THE UNITED STATES REACHES OVER EVERY PORTION OF THE NATIONAL DOMAIN, WHETHER IN THE FORM OF STATES, TERRITORIES, OR DISTRICTS, BECAUSE THIS CONSTITUTION PROVIDES FOR TERRITORIES AS WELL AS STATES. BY THE PROTOCOL AND TREATY OF PEACE BETWEEN THIS GOVERNMENT AND SPAIN, THE ISLAND OF PORTO RICO WAS CEDED TO AND ACCEPTED BY THE UNITED STATES. THERE WAS AN ABSOLUTE CHANGE OF TITLE AND SOVEREIGNTY. IT IS NO LONGER FOREIGN TERRITORY, BUT IS A PART OF THE UNITED STATES.

II.

OURS IS A CONSTITUTIONAL GOVERNMENT.

EVERY PUBLIC OFFICER, WHETHER BELONGING TO THE LEGISLATIVE, EXECUTIVE, OR JUDICIAL DEPARTMENT, IS SUBJECT TO A WRITTEN CONSTITUTION, AND EVERY PERSON, HOWEVER EXALTED OR HUMBLE, OWES OBEDIENCE TO ITS PROVISIONS AND IS ENTITLED TO ITS PROTECTION.