Opinion of the Court. one party so that it was no longer obligatory on the other; whether the views and acts of a foreign sovereign had given just occasion to the legislative department of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise, were not judicial questions; that the power to determine these matters had not been confided to the judiciary, which has no suitable means to exercise it, but to the executive and legislative departments of our government; and that they belong to diplomacy and legislation, and not to the administration of the laws. And he justly observed, as a necessary consequence of these views, that if the power to determine these matters is vested in Congress, it is wholly immaterial to inquire whether by the act assailed it has departed from the treaty or not, or whether such departure was by accident or design, and, if the latter, whether the reasons were good or bad. In these views we fully concur. It follows, therefore, that when a law is clear in its provisions, its validity cannot be assailed before the courts for want of conformity to stipulations of a previous treaty not already executed. Considerations of that character belong to another department of the government. The duty of the courts is to construe and give effect to the latest expression of the sovereign will. In Head Money Cases, 112 U. S. 580, it was objected to an act of Congress that it violated provisions contained in treaties with foreign nations, but the court replied that so far as the provisions of the act were in conflict with any treaty, they must prevail in all the courts of the country; and, after a full and elaborate consideration of the subject, it held that "so far as a treaty made by the United States with any foreign nation can be the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal.” Judgment affirmed. Opinion of the Court. KELLY v. HEDDEN. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Argued December 13, 14, 1887. Decided January 9, 1888. The distinction between this case and Whitney v. Robertson, ante, 190, does not warrant a different disposition of it. THIS was an action to recover back duties alleged to have been illegally exacted. It was argued with Whitney v. Robertson, ante, 190. Mr. A. J. Willard and Mr. H. E. Tremain for plaintiff in Mr. M. W. Tyler was with them on their brief. error. Mr. Solicitor General for defendant in error. MR. JUSTICE FIELD delivered the opinion of the court. This case, except in one particular, presents the same questions considered and determined in Whitney v. Robertson. The exceptional circumstance is this, that the act of 1883, under which the duties were levied and collected, to recover which the action is brought, declares that nothing in it "shall in any way change or impair the force and effect of any treaty between the United States and any other government, or any laws passed in pursuance of or for the execution of any such treaty, so long as such treaty shall remain in force in respect of the subjects embraced in this act." 22 Stat. 525. The most that can be conceded to this provision is, that it leaves a previous treaty relating to the same subjects unaffected by the act. Our observations in the former case, as to the effect of subsequent legislation in conflict with the stipulations of a treaty, are therefore inapplicable to the present case. But all other considerations as to specific exemptions in return for special concessions remain, in answer to the alleged contention Opinion of the Court. of the plaintiffs that articles, the produce and manufacture of the island of San Domingo should be admitted free of duty because similar articles, the produce and manufacture of the Hawaiian Islands, are thus admitted. Judgment affirmed. SEARL v. SCHOOL DISTRICT NO. 2. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO Argued December 20, 1887. - Decided January 16, 1888. The proceeding, authorized by the statutes of Colorado, for condemning land to public use for school purposes, is a suit at law, within the meaning of the Constitution of the United States and the acts of Congress conferring jurisdiction upon the courts of the United States, which may be removed into a Circuit Court of the United States from a state court. THIS was an appeal from a judgment of the Circuit Court, remanding a cause to the state court from which it had been removed. The case is stated in the opinion of the court. Mr. Walter H. Smith for plaintiff in error. Mr. A. T. Britton and Mr. A. B. Browne were with him on the brief. Mr. Samuel.P. Rose and Mr. F. W. Owers also filed a brief for same. No appearance for defendant in error. MR. JUSTICE MATTHEWS delivered the opinion of the court. On June 2, 1884, School District No. 2 in the County of Lake and State of Colorado filed a petition in the county court of that county against R. S. Searl, the owner of a certain lot of land in the city of Leadville, therein described, for the purpose of condemning the same to public use for school purposes, and praying that the amount to be paid as compensation therefor should be assessed according to the statute in Opinion of the Court. such cases provided. On June 10, 1884, the defendant appeared, and being a citizen of the State of Kansas, filed his petition and bond for the removal of said cause to the Circuit Court of the United States for that district, on the ground that the controversy therein was between citizens of different States. An order for the removal of the cause was thereupon made by the state court. On June 28, 1884, the plaintiff moved to remand the same, which motion was granted, and the cause was thereby remanded. To review this judgment the present writ of error is prosecuted. By § 3035 of the General Statutes of the State of Colorado, the plaintiff is a body corporate, and authorized to hold property and be a party to suits and contracts "the same as municipal corporations in this State." The code of civil procedure of that State provides for the appropriation of private property for public use, and authorizes a judicial proceeding in the district or county court for the purpose of ascertaining and awarding the amount of compensation to be paid therefor. It requires the filing of a petition setting forth the authority of the plaintiff to acquire the property in that mode, the purpose for which it is sought to be taken, a description of the property, and the names of all persons interested therein, who are to be made defendants and brought into court by the service of a summons or other process, as in other cases is provided by law. It provides, in the first instance, for the ascertainment of the amount of compensation or damages by a commission of three freeholders, but also that before the appointment of such commissioners any defendant may demand a jury of six freeholders residing in the county, to ascertain, determine, and appraise the damages or compensation to be allowed, and prescribes in such case the mode of trial, at which the court or judge shall preside in the same manner and with like power as in other cases; that evidence 'shall be admitted or rejected by the court or judge according to the rules of law; and at the conclusion of the evidence that the matters in controversy may be argued by counsel to the jury, and at the conclusion of the argument that the court or judge shall instruct the jury in writing in the same manner as Opinion of the Court. in cases at law; that motions for a new trial, and to set aside the verdict, may be made and heard as in other cases; that an appeal may be taken to the Supreme Court in the same manner as provided by law for taking appeals from the District Court to the Supreme Court; and that a writ of error from the Supreme Court shall lie in every such case to bring in review the final determination. Such a proceeding, according to the decision of this court in Kohl v. United States, 91 U. S. 367, is a suit at law, within the meaning of the Constitution of the United States and the acts of Congress conferring jurisdiction upon the courts of the United States. In Boom Co. v. Patterson, 98 U. S. 403, 406, speaking of a judicial proceeding to appropriate private property to a public use and to fix the compensation therefor, it was said: “If that inquiry take the form of a proceeding before the courts, between parties, the owners of the land on one side, and the company seeking the appropriation on the other, there is a controversy which is subject to the ordinary incidents of a civil suit;" and among such incidents, it was held in that case, was the right, on the ground of citizenship, to remove it from a state to a federal tribunal for hearing and determination. The same point was ruled in the Pacific Kailroad Removal Cases, 115 U. S. 1, 18. In Gaines v. Fuentes, 92 U. S. 10, it was held that a controversy between citizens is involved in a suit whenever any property or claim of the parties capable of pecuniary estimation is the subject of litigation and is presented by pleadings for judicial determination. The fact that the Colorado statute provides for the ascertainment of damages by a commission of three freeholders, unless at the hearing a defendant shall demand a jury, does not make the proceeding from its commencement any the less a suit at law within the meaning of the Constitution and acts of Congress and the previous decisions of this court. The appointment of the commissioners is not, as in the case of Boom Co. v. Patterson and the Pacific Railroad Removal Cases, a step taken by the party seeking to make the appropriation ex parte and antecedent to the actual commencement |