IN THE SUPREME COURT OF THE UNITED STATES. October Term, 1900. No. 509. CARLOS ARMSTRONG, APPELLANT, vs. THE UNITED STATES, DEFENDANT. APPELLANT'S BRIEF IN REPLY TO THE BRIEF AND ARGUMENT OF THE ATTORNEY-GENERAL. As heretofore stated, Carlos Armstrong resides in Porto Rico, at the city of Ponce, and is there a merchant. He purchased goods, wares, and merchandise subsequent to the signing of the protocol of peace between Spain and the United States at the conclusion of and prior to the passage of an act of Congress which has been styled in this argument as the Foraker Act at New York, Philadelphia, and Baltimore, and shipped the same to Ponce, Porto Rico, for consumption. The War Department compelled him to pay a tariff duty on said goods at Ponce, and the money therefrom was paid into the United States Treasury, where it now is. Mr. Armstrong sued in the Court of Claims to recover this money, holding that it was illegally demanded upon his goods so purchased and shipped as above stated. He makes this claim for a recovery of this money on the ground that upon the ratification of the treaty of peace with Spain, whereby Porto Rico was ceded to the United States, the island of Porto Rico became a part of the United States of America and subject to its jurisdiction; and that throughout the United States "taxes, duties, imposts, and excises shall be uniform," and that "no tax or duty shall be laid on articles imported from any State. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another." And that the words "no preference shall be given by any regulation of commerce or revenue to the ports of one State ovor those of another" apply to the Territories as well as the States Territories in connection with the States. Department collected duties at Ponce, Porto Rico, on goods e from New York, Philadelphia, and Baltimore, as though Philadelphia, and Baltimore were of a different jurisdiction and that Porto Rico was a foreign country to the United tead of a part of it. no dispute that these tariff duties were levied and collected int's goods as though they went to a foreign country: and it Doc. 509-58 913 must be, therefore, conceded that if said goods were not shipped from New York, Philadelphia, and Baltimore to a foreign country these duties were illegally exacted and may be recovered in this action. AS TO THE JURISDICTION OF THE COURT OF CLAIMS TO ENTERTAIN THIS ACTION. By chapter 21 of the Revised Statutes of 1878, section 1059, it is provided that: The Court of Claims shall have jurisdiction to hear and determine the following matters: First. "All claims founded upon any laws of Congress, or upon any regulation of an Executive Department, or upon any contract, expressed or implied, with the Government of the United States, and all claims which may be referred to it by either House of Congress. Under the jurisdiction provided by this section Mr. John S. Mosby, in 133 U. S., page 273, sued the Government for the amount of unofficial fees collected by him for certifying invoices for goods exported to the United States from Hongkong while he was consul at that port, which fees he paid into the United States Treasury upon the demand of the Treasury officials. In paying these moneys into the United States Treasury he did not concede that the Government had a right to compel him to pay said moneys over to it, but as it was demanded of him, rather than involve himself in a controversy with the State Department while holding a subordinate position in it, and because he was compelled to obey orders or be dismissed from office, and thereby subject himself to the imputation of appropriating money which did not belong to him, he paid the money into the United States Treasury. In doing this he relied on the good faith of the Government to pay whatever belonged to him on a final statement of his accounts. In a suit based upon these facts he recovered his said fees, and the Court of Claims was held to have jurisdiction of the action. In the decision in the Mosby case the rule of the court in Lawson's case, 104 U. S., 164, was followed. The facts set up in the petition in appellant's case show that appellant paid the duties demanded of him by the army officers in Porto Rico under protest, and relied upon the Government to restore the same to him should it after all be found that the duties were unlawfully exacted. This case is on all fours, therefore, with the Mosby case, and the Court of Claims undoubtedly properly entertained jurisdiction of the case. It is also hereby suggested that the Court of Claims has jurisdiction of this action on the ground that it arises under a regulation of the executive department. The act of February 24th, 1855 (10 S. L., 612), endowed the Court of Claims with jurisdiction of a claim arising under any regulation of any Executive department. And in Harvey's case, 3 C. Cls., p. 38, it was held that such a “regulation" means a rule made by the head of the department for its action, under an act of Congress conferring power to do so. Congress declared war against Spain, and gave to the President the power to carry on said war to a successful issue. In pursuance of his duties under said Congressional authority the President made the regulations quoted in former brief. This is a claim arising under said regulations, and by the jurisdic tional acts above referred to the court is endowed with jurisdiction of the claim sued on. The case in the Court of Claims went off on a demurrer to the petition, and while the Attorney-General demurred on the ground that the Court of Claims was without jurisdiction in the subject-matter of the action, as well as upon the ground that the petition did not state facts sufficient to constitute a cause of action, the court passed over the first ground of the demurrer, holding that it had jurisdiction of the action, and decided the question on the second ground of demurrer, holding that the petition did not state facts sufficient to constitute a cause of action. The petitioner appealed from the judgment of the court in sustaining the demurrer on the ground of insufficiency of facts stated in the case, and was content with the assumption of jurisdiction of the action by said court. The Attorney-General was apparently satisfied with the action of the Court of Claims on the question of its jurisdiction of the subjectmatter herein, for he did not appeal from the judgment of the court on the question of jurisdiction. It is, therefore, a little out of order for the Attorney-General to now discuss in his brief the jurisdiction of the Court of Claims in this action. And it would seem that by his failure to appeal from the judgment of the Court of Claims on the question of jurisdiction that he admitted the jurisdiction of that court in this action. But whether he has or not, we meet him on the issue of jurisdiction, and insist that the Court of Claims properly entertained jurisdiction of the subject-matter of this action, and there is positively no tort involved in the matter. The only court which has jurisdiction of the claim set forth in the petition is the Court of Claims. The district court for the district of Porto Rico, established by the act of Congress of April 12th, 1900, is limited to the general jurisdiction now exercised by the circuit and district courts of the United States (Laws 1900, chap. 191, sec. 34). This claim could not be prosecuted in any circuit or district court of the United States, both because the petitioner is an alien and because the amount in suit is over $10,000. The suit is also within the general jurisdiction conferred upon the Court of Claims by the Tucker Act, and it has been expressly decided that a subject of Great Britain can sue the United States in this court. No tribunal has ever been constituted by act of Congress or any order of the President of the United States for the hearing and determination of claims of this class. There is no provision in the act of April 12th, 1900, for reviewing the decisions of the customs officers in relation to duties assessed and paid upon goods imported from the United States into Porto Rico; nor is there any act of Congress, or any order of the President, providing for any review of the questions arising out of the imposition and collection of duties by the military officers upon goods imported into Porto Rico from the United States. The claim is not founded upon any tariff law of the United States, nor does it arise out of the payment of duties under any act of Congress, hence the customs administrative act of June 10, 1900 (26 Statutes at Large, 131, 1st Supp. R. S., p. 744), can have no application. The procedure provided in sections 12 to 15 of that act would not give the petitioner an opportunity to raise the questions as to the legality of these duties which he has presented in his petition. That act applies only to customs duties paid on merchandise imported from a foreign country into a port of the United States where such duties have been assessed by the customs officers of the Treasury Department under the provisions of the general tariff laws. Such procedure can not be held to apply to a review of the actions of the military officers acting under orders of the President. If any proceeding could be taken before any board of general appraisers such board would not have power to pass upon the ques tions raised by the petition with reference to the constitutionality of the imposition of these duties and the alleged violation of the treaty of Paris by such imposition. The only questions which can come before the board of general appraisers for determination under the statute are as to the rate and amount of duties charged upon imported merchandise. The question of whether an article is imported merchandise and subject to the imposition of duties can not be raised before the board of appraisers or upon any appeal from their decision, and to institute proceedings under the customs administrative act amounts to a concession that the article is imported merchandise and subject to imposition of duties. In re Fasset, 142 U. S., 479, at 487. The cases based upon Nichols v. U. S., 7 Wall., 122, in which the jurisdiction of this court is denied on claims arising under the revenue laws where Congress has provided "a system" for their adjustment, do not apply to the claim at bar, which is based not upon any revenue law, but upon an alleged unconstitutional exercise of power by the President and military authorities. No other method having been provided by Congress for the hearing and determination of this class of claims, it follows that this claim is within the general jurisdiction of this court. Smithmeyer vs. U. S., 147 U. S., 342. Foster vs. U. S., 32 Ct. Cl., 170, at 195. The petitioner's claim is "founded upon the Constitution of the United States," and is clearly within the jurisdiction conferred upon this court by the Tucker Act (24 U. S. Stat., 505). "That the Court of Claims shall have jurisdiction to hear and determine all claims founded upon the Constitution of the United States is as comprehensive and untrammeled a grant of judicial authority as the legislative power could well make." Stovall, Admr., vs. U. S., 26 Ct. Cl., 226, at 238, 239, 240. The case of Sherman against United States, 178 U. S., 150, was a suit brought for the recovery of $8,969.02, which had been exacted of the appellant by the collector of internal revenue for the 14th district of New York under the act of June 13, 1898, and this court sustained the jurisdiction of the lower court to determine the controversy. This case is even stronger in support of the jurisdiction of the Court |