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to the Southern Car and Foundry Company, which was a citizen of the State of New Jersey. The amount involved and the diverse citizenship of the parties were such that the car company might have sued the defendant, a citizen of the State of Alabama, in the Circuit Court of the United States independently of the bankruptcy proceedings. We think, by the terms of this section, it was intended to preserve this right to the trustee in bankruptcy, and that the citizenship of the trustee is wholly immaterial to the jurisdiction of such a

case.

The Circuit Court erred in reaching the contrary conclusion, and its judgment is

Reversed.

LINCOLN v. UNITED STATES.

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WARNER, BARNES AND COMPANY, LIMITED,

UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR

THE SOUTHERN DISTRICT OF NEW YORK. APPEAL FROM THE

COURT OF CLAIMS.

Nos. 149, 466. Argued March 3, 1905; decided April 3, 1905; Petitions for rehearing allowed May 29, 1905; Reargued January 18, 19, 1906.-Decided on reargument May 28, 1906.

Lincoln v. United States, 197 U. S. 419, reaffirmed, after rehearing, to the

effect that the Executive order of July 12, 1898, directing that upon the occupation of ports and places in the Philippine Islands by the forces of the United States duties should be levied and collected as a military contribution, was a regulation for and during the war with Spain, referred to as definitely as though it had been named, and the right to levy duties thereunder on goods brought from the United States ceased on the exchange of ratifications of the treaty of peace; that after title to the Philippine Islands passed by the exchange of ratifications on April 11, 1899, there was nothing in the Philippine Insurrection of sufficient gravity to give to those islands the character of foreign countries within the meaning of a tariff act; that the ratification of Executive action, and of authorities under the Executive order of July 12, 1898, contained in the act of July 1, 1902, 32 Stat. 691, was confined to actions taken in accord1 There was also a separate brief filed by Mr. Hilary A. Herbert and Mr. Benj. Micou in behalf of certain claimants having interests similar to those of appellants.

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ance with its provisions; and that the exaction of duties on goods brought from the United States after April 11, 1899, was not in accordance with

those provisions and was not ratified. A ratification by act of Congress will not be extended to cover what was

not, in the judgment of the courts, intended to be covered, because otherwise the ratification would be meaningless or unnecessary. Congress out of abundant caution may ratify, and at times has ratified, that which was subsequently found not to have needed ratification.

The facts are stated in the opinion.

Mr. Paul Fuller, Mr. Frederic R. Coudert and Mr. John G. Carlisle, with whom Mr. Henry M. Ward was on the brief, for plaintiffs in error and appellant: 1

The moneys exacted from the plaintiffs in error and appellants were unlawfully exacted and consequently are still their property. No change of title is operated by illegal seizure. That point is not open to reargument. Warner, Barnes & Co. v. United States, 197 U. S. 419; Dorr v. United States, 195 U. S. 138; Rassmussen v. United States, 197 U. S. 516; Czarnikow v. Bidwell, 191 U.S. 559; De Lima v. Bidwell, 182 U. S. 1, 199, 200.

The only question subject to rehearing is the effect of the act of Congress of July 1, 1902, upon the illegal seizure of the moneys of complainants and whether their ownership of the moneys was divested by the operation of said act.

Congress had no power to divest the complainants of their ownership of the moneys or deprive them of their property. Constitution, Fifth Amendment; United States v. Lee, 106 U. S. 218, 219. Nor could any ratification of an illegal act operate a change of title, nor divest complainants of their vested right to recover the moneys unlawfully exacted. De Lima v. Bidwell, 182 U. S. 199, 200; Alter's Appeal, 67 Pa. St. 433; Donovan v. Pitcher, 53 Alabama, 634; Palairet's Appeal, 67 Pa. St. 341; Norman v. Heist, 5 W. & S. 171.

Argument for Appellant.

202 U. S.

Apart from the right of the complainants to protect their ownership of the moneys as against the United States and to bring suit for recovery,-complainants had a right of recovery against the officer or agent who made the illegal exaction. Such was the recovery in De Lima v. Bidwell, supra. This right of recovery or right of action against the official who makes the exaction or commits the trespass is recognized in a long line of cases. Little v. Barreme, 2 Cranch, 170; Meigs v. McClung's Lessee, 9 Cranch, 11; Osborn v. Bank of U. S., 9 Wheat. 738; Grisar v. McDowell, 6 Wall. 363; Bates v. Clark, 95 U. S. 204; United States v. Lee, 106 U. S. 196; Virginia Coupon Cases, 114 U.S. 270; In re Ayers, 123 U. S. 443; McGahey v. Virginia, 135 U. S. 662; Belknap v. Schild, 161 U. S. 10.

Such a right of action constitutes property in the same sense as tangible things and is equally entitled to protection against arbitrary interference or legislative impairment; even to the extent that the denial of a remedy or imposition of new conditions or restrictions upon its exercise is such an interference. Cooley, Const. Lim., 6th ed., 443; Sutherland, Stat. Const. $$ 164, 206; Steamship Co. v. Joliffe, 2 Wall. 450, 457, 458; Angle v. Chicago, St. P. &c. Ry., 151 U. S. 1, 19; Bronson v. Kinzie, 1 How. 311, 317; Barnitz v. Beverly, 163 U. S. 118, and cases there collated; Auffmordt v. Rasin, 102 U. S. 622; Hubbard v. Brainard, 35 Connecticut, 563.

The limitation upon the right to pass retrospective or retroactive legislation is that it must not interfere with vested rights. Fleckner v. Bank of U.S., 8 Wheat. 338, 363; Society v. Wheeler, 22 Fed. Cas. 767 (per Story, J.), approved in Sturgis v. Carter, 114 U. S. 519.

All of the cases in the books validating assessments or municipal bond issues have reference solely to the methods of action employed and relate to statutes curative only of defects in the procedure by which an undoubted power has been exercised. Such is the case of Mattingly v. District of Columbia, 97 U. S. 687, and the many kindred cases. No cases can

202 U. S.

Argument for Appellant.

be found in this court where the fundamental absence of power to do an act sought to be supplied by subsequent legislation has been upheld.

The distinction is well pointed out in Lennon v. The Mayor, 53 N. Y. 367, and in Cromwell v. MacLean, 123 N. Y. 474 (per Peckham, J.).

The constitutional guarantees against protection are as applicable to personal property as to realty. Relief against interference with such property can be had against the United States as well as against individuals. Osborn v. Bank of U. S., 91 U. S. 474; United States v. Klein, 13 Wall. 128; United States v. State Bank, 96 U. S. 30.

Congress cannot ratify an invalid act unless at the time of ratification it could itself lawfully do the act which it assumes to ratify. Unless Congress could in July, 1902, have legally imposed customs duties upon importations theretofore made into the Philippines, it could not, under guise of ratification, accomplish an identical result. Grenada Co. Supervisors v. Brogden, 112 U. S. 271; Norton v. Shelby County, 118 U. S. 457; Kimball v. Rosedale, 42 Wisconsin, 413.

The power of Congress is limited in the levying of duties to a tax upon the importation of merchandise; if merchandise has been imported in accordance with existing law, free from duty, and is mingled with the property of the country, Congress has no authority to levy duties upon it. Complainants' merchandise was imported free of duty in accordance with the law at the time of its importation and Congress cannot by a retroactive law sanction the imposition of the duty upon goods not subject to it at the time of their importation.

The act of July 1, 1902, does not disclose any intention to legalize the collection of duties which this court had decided to have been unlawfully exacted. Duties are never imposed upon vague or doubtful interpretations; the requirement of a tax law is that any intention to impose a burden upon the citizen must be expressed in clear and unambiguous language. Hartranft v. Wiegmann, 121 U. S. 609; Am. N. & T. Co. v.

Argument for Appellant.

202 U.S.

Worthington, 141 U. S. 468. There is no such intention expressed in clear language; if such was the purpose of Congress it could have been expressed in language of the utmost simplicity. Under the decisions quoted such an intention cannot be inferred.

Such an inference would assume that the Government is unwilling to fulfill its obligations, pay its debts and do justice to the citizen. This is a supposition that cannot be indulged in. Gibbons v. United States, 8 Wall. 274. It is as much the duty of the Government as of individuals to fulfil its obligations and no assumption can be indulged in that the United States intended to deprive the citizen of his property without compensation. United States v. Klein, 13 Wall. 144; Meigs v. McClung's Lessee, 9 Cranch, 11; United States v. State Bank, 96 U. S. 30.

A contrary intent is shown in cotemporary acts of Congress authorizing the refunding to citizens of duties unadvisedly collected. Act of April 29, 1902, 32 Stat. 176; act of March 3, 1903, 32 Stat. 1224; act of March 3, 1905, 33 Stat. 1013. It may rightfully be presumed that the legislature never intends to interfere with the action of the courts. Angle v. Chicago & St. P. Ry., 151 U. S. 20. To infer such an intention would assume that Congress intended to ignore the prohibitions of the Fifth Amendment and such a presumption will never be assumed. Supervisors v. Brogden, 112 U. S. 269, and cases collated in Hawaii v. Mankichi, 190 U. S. 214.

The act of July 1, 1902, § 5, extends to the Philippines the constitutional guarantees for the protection of property which is inconsistent with the intention attributed to the act of depriving citizens of property without a hearing. The act only purports to ratify the action of the President as set forth in the order of July 12, 1898, and the action of the authorities "taken in accordance with the provisions of said order.” It has already been held that the order was only intended to enforce the payment of duties on goods from foreign countries and that it ceased to apply to the Philippines, when the Philip

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