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202 U. S.

Argument for the United States.

pines ceased to be foreign. Dooley v. United States, 182 U. S. 235; Lincoln v. United States, 197 U. S. 428.

The act did not ratify nor assume to ratify acts done beyond the sanction of the order or under misinterpretations of the order. The authorities misinterpreted the order in applying it to the Philippines, after the Philippines had ceased to be foreign as held in the Fourteen Diamond Rings, 183 U. S. 176.

What the act of July 1, 1902, probably intended to ratify and did ratify was the action of the President in applying the order and in enforcing certain additional or amendatory orders after the ratification of the treaty of peace, such as applying a tariff between the Philippines and foreign countries, different from the congressional tariff applicable to the United States, contrary to the rulings of this court in Cross v. Harrison, 16 How. 164. Dooley v. United States, 182 U. S. 222; De Lima v. Bidwell, 182 U. S. 184. And the further assumption of authority by the President in adding articles to the dutiable list (Tariff Circular No. 53, War Department, 17 Apr., 1899), in constituting the Philippines and the Island of Guam into a collection district, creating ports of entry and directing the appointment of collectors, auditors, etc. Tariff Circular No. 65, War Department, 5th May, 1899; Circular No. 20, Division of Custom and Insular Affairs, 8 May, 1899.

The exercise of these powers in time of peace were of questionable validity and a proper subject for congressional ratification.

The Attorney General and The Solicitor General for the United States:

The failure of Congress at the outset to enact as to the Philippine tariff specifically as soon as the treaty of December 8, 1898, was ratified, must be taken, we think, to mean that Congress also supposed that the war power of the President was ample and extended to the new armed conflict. The legislature not disapproving, its silence signified assent and acquiescence. Apart from formal recorded proceedings, com

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mittee action, the taking of testimony, etc., it must be conclusively presumed that Congress was fully informed at all stages and knew exactly what was taking place and being done both in the military campaigns and in civil administration. The formal and concrete action of Congress during the insurrectionary period up to the enactment of the Spooner amendment was logically confined to providing men and munitions. This was necessary for Congress to do, and this is all that was necessary for it to do consistently with the idea of its tacit assumption of the extent of the executive power and its tacit agreement in the propriety of the excutive acts. Plainly no unfavorable inference can be drawn from this essential "legislation of the purse," as containing in the affirmative grant a sort of negative pregnant; this is not a prohibition on the President or any dissent whatever from the civil and military programme of his administration.

Then came the Spooner amendment in March, 1901, and whatever else may be pertinent to say about it, this much is certain that it followed by substantial reproduction of language the precedent of the Louisiana case (act of October 31, 1803; 2 Stat. 245); that there could not well be a broader grant of power giving the President all possible authority to cover every phase of the Philippine emergencies and necessities, and that the general intention of Congress at that point to approve comprehensively what the President had previously done, and to authorize him comprehensively to act thus in future, appears too plainly for any discussion.

The act of March 8, 1902, was the adoption by Congress itself, as its own tariff law for the Philippines, of the existing provisional tariff, without any change, and specifying that it applied to merchandise entering the Philippines from the United States. This statute altogether disposed for the future of the question of the validity of the taxation, and of course falls completely within the ruling of the insular cases respecting the constitutionality of the analogous law for Porto Rico -the Foraker Act. No reasonable mind could doubt that the

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Argument for the United States.

fair and natural inference from this act is that Congress had followed the proceedings in the tariff field respecting the Philippines and approved what had been done, although so far without specific ratification as to the past. In other words, this act throws light on the real intendment of Congress in the ratifying act of the following July.

It is certainly difficult to a plain apprehension approaching the confirming act of July 1, 1902, and reading the language in the light of the previous facts which we have briefly set forth, to conceive that Congress did not mean to foreclose this subject when it approved, ratified, and confirmed the action of the President as set forth in his order of July 12, 1898, together with the subsequent amendments of said order, and approved the action of the authorities of the government of the Philippine Islands taken in accordance with the provisions of said order and subsequent amendments.

With deference, it seems like ignoring the plain meaning and searching for hidden significance and distinctions which were not at all in the mind of Congress and do not really exist, to say that the statute was meant to ratify the President's action only so far as taken by virtue of his undoubted authority as Commander in Chief, and approved only those proceedings and doings of his subordinate officers which were in unquestioned accordance with the provisions of the order; that is, as applicable only before April 11, 1899; because all those actions of the Executive (prior to April 11, 1899) were unquestionably valid without ratification by Congress under established principles of public law.

Long before the act was passed this court said when it decided in Dooley v. United States, 182 U. S. 222, that the executive action imposing duties upon goods imported into Porto Rico up to the date of ratification of the treaty of peace was entirely valid.

The language used has this full force and significance and it is impossible to restrain and confine it to the time, and the executive action, before April 11, 1899, unless the

Argument for the United States.

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words of the statute are wrested from their obvious and natural import.

Congress could have authorized the imposition of duties in advance, and therefore could ratify afterwards. There was no illegal delegation of legislative power or approval tantamount to attempted illegal delegation by relation back. The President's tariff order was a military decree, operating with the compulsion of a command upon all subordinate officers. It is misleading to treat it as legislation. But in either aspect, as military mandate or law, it was valid in origin. Dooley v. United States, 182 U. S. 222, 230.

When its constitutional authority expired on April 11, 1899, the Executive was acting, not legislating, believing the action authorized; it was proceeding de facto. There was no legislation or revival of legislation. The subsequent amendments to the order were administrative directions to military officers and were believed to rest on the war power. When Congress approved, it did not seek to revitalize a legislative power or validate nunc pro tunc an unconstitutional exercise of such power. It simply confirmed the acts done and adopted the effects of the previous originating legislative cause, which was efficacious de facto, although its legal validity had expired. It was efficacious de facto because the acts were done in point of fact.

Clearly, Congress could have authorized in advance. On April 11, 1899, it could have passed the Philippine tariff act which it passed March 8, 1902. Downes v. Bidwell, 182 U. S. 244. On April 11, 1899, it could have authorized the President to proceed as he did, to continue the operation of the tariff order which he had already imposed and under which, in fact, he steadily collected duties. That is to say, on April 11, 1899, Congress could have adopted the Spooner amendment of March 2, 1901, which the court fully recognizes as a constitutional delegation of power to the President and his subordinate executive agencies, resting on the authority of Congress to "make all needful rules and regulations respecting

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belonging to the United States." Dorr v. United States, 195 U. S. 138, 143, 153.

This case does not involve the consequence that Congress must be able to lay a retrospective tax, that is, impose duties now on a transaction of, say, five years ago. But if such a tax were equal and uniform, what is to prevent? Congress perhaps is not likely so to tax; it might be unwise or even unjust, but it would be constitutionally valid. There is no precise authority, but this is manifestly the tendency, and effect of Stockdale v. Insurance Companies, 20 Wall. 323.

As to the notion of vested rights. This case does not fall within that exception, either, as preventing subsequent ratification by Congress.

On the general doctrines about ratification we cite the following authorities additional to those cited on the original hearing. State v. Squires, 26 Iowa, 340; Grogan v. San Francisco, 18 California, 590; McCauley v. Brooks, 16 California, 1, 27; McCracken v. San Francisco, 16 California, 591; Brady v. Mayor &c., 16 How. Pr. 432; Zottman v. San Francisco, 20 California, 97; Peterson v. Mayor &c., 17 N. Y. 449; Schneck v. City of Jeffersonville, 152 Indiana, 204; Marks v. Purdue University, 37 Indiana, 155.

The vested right must be one which is constitutionally protected, that is, the right to be compensated when private property is taken for public use, and the right to have due process of law. It is idle to claim that legislation may not affect vested rights of property, and no man has a vested right not to be taxed. There was due process of law here, because when these duties were levied, the law of the Philippines, like our own law, fully provided for protest and hearing. That is, there was entire compliance with the rules of due process as to tax levies. It is only when there is no notice to the taxpayer or some other vital defect, as in the authorities cited by our adversaries, that the tax is illegal. There is no more reason for saying that private property is taken here for public use without compensation, than in any other case

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