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Argument for the United States.

202 U.S.

of taxation. All these suggestions beg the question. The very inquiry before the court is whether these duties are the claimants' property.

The power of a legislature to confirm embraces not only cases where mere irregularities or informalities in procedure are cured, but where there was a total want of authority in the executive officer and the tax levies were therefore utterly void. It makes no difference if rights are divested. To legalize a tax in this way does not unconstitutionally interfere with vested rights. There is no right of action vested beyond control by the curative act, and the bringing of suit makes no difference. Iowa R. R. Land Co. v. Soper, 39 Iowa, 112, and cases cited; Grim v. School District, 57 Pa. St. 433. The power to tax, and especially the Federal power to tax, is unlimited, and the constitutionality of retrospective laws has been sustained many times. The real question is whether the retrospective intention is clear. In De Lima v. Bidwell, 182 U. S. 1, 199, the retroactive effect of the statute rested on inference, and the court naturally construed it as not intended to operate retroactively. This law is, however, expressly and manifestly retroactive, leaving no room for construction. The claimants appear to repudiate the idea that the filing of suit makes any difference, by which they seem to mean that their mere right of action is protected, and probably have in mind the numerous suits filed after July 1, 1902. If the intention of Congress is sustained by the court and only the retroactive power denied, manifestly those suits fall. But we go beyond the claimants' concession. We say that a right of action is not a vested right of property, and that the bringing of suit even before the passage of the act does not vest a right. The state authorities cited for the contrary view in De Lima v. Bidwell, 182 U. S. 200, on analysis show that the bringing of suit was not the real ground of decision. For instance, in Palairet's Appeal, 67 Pa. St. 479, it was simply held that an act of assembly providing for the extinguishment of irredeemable ground rents was unconstitutional, because it took

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private property for private use without consent of the owner. There is no such case here. There is no taking even for public use, because, on fundamental and firmly established principles, burdens on property imposed under the power of taxation do not constitute a taking of private property for public use without compensation.

Further, in De Lima v. Bidwell there was due protest. There was no protest at all in these cases, written or verbal, formal or informal. That alone is a sufficient ground for denying this claim. Protest is a necessary preliminary to establish any claim. The authorities without exception sustain the contention that where there is no protest the payment is voluntary and cannot be recovered. Elliott v. Swartwout, 10 Pet. 137; Bend v. Hoyt, 13 Pet. 263; Converse v. Burgess, 18 How. 413; Philadelphia v. Collector, 5 Wall. 720; Nicholl v. United States, 7 Wall. 122; Wright v. Blakeslee, 101 U. S. 174; Barney v. Rickard, 157 U. S. 352; Chesebrough v. United States, 192 U. S. 253. And see especially Hamilton v. Dillin, 21 Wall. 73, 92; and Cross v. Harrison, 16 How. 201, as to the supposed "compulsion" resting on importers. No valid reason can be given why absence of protest cannot now be set up as a defense.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

These are suits to recover duties exacted from plaintiffs in error and appellants upon merchandise shipped by them from New York to Manila, and landed at the latter port between April 11, 1899, the date when the ratifications of the treaty with Spain were exchanged, and the treaty proclaimed, and October 25, 1901. The duties were levied under an order of the President, dated July 12, 1898. The cases were argued in this court March 3, 1905, and the judgments reversed April 3, 1905. 197 U. S. 419, 429.

We ruled that the order of July 12, 1898, was a regulation

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for and during the then existing war with Spain, referred to as definitely as if it had been named, and that the right to levy duties thereunder on goods brought from the United States ceased on the exchange of ratifications. Dooley v. United States, 182 U. S. 222.

And that after title passed, April 11, 1899, there was nothing in the Philippine insurrection of sufficient gravity to give to the islands the character of foreign countries within the meaning of a tariff act. Fourteen Diamond Rings, 183 U. S. 176. As to the subsidiary point that whether the exaction of the duties was lawful or not, it had been ratified by the act of July 1, 1902, 32 Stat. 691, 692, c. 1369, § 2, we were of opinion that the ratification of "the actions of the authorities.

taken in accordance with the provisions of said order and subsequent amendments" was confined to actions which were taken in accordance with the provisions of the order and amendments, which these exactions were not. May 29, 1905, we allowed petitions for rehearing to be filed addressed solely to the matter of ratification, and subsequently (November 13) a rehearing was granted "as to the question whether Congress ratified the collection of the sums sought to be recovered in these suits."

The cases were reargued January 18 and 19 on that question. That the moneys exacted from plaintiffs in error and appellants were illegally exacted is not open to question under our order, unless the act of July 1, 1902, operated to the contrary. The second section of that act reads as follows: "That the action of the President of the United States heretofore taken by virtue of the authority vested in him as Commander in Chief of the Army and Navy, as set forth in his order of July twelfth, eighteen hundred and ninety-eight, whereby a tariff of duties and taxes as set forth by said order was to be levied and collected at all ports and places in the Philippine Islands upon passing into the occupation and possession of the forces of the United States, together with the subsequent amendments of said order, are hereby approved, ratified, and confirmed, and the actions of the authorities of the government of the Philip

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pine Islands, taken in accordance with the provisions of said order and subsequent amendments, are hereby approved." The order of July 12, 1898, by President McKinley, as Commander in Chief, directed that upon occupation of any ports or places in the Philippine Islands by the forces of the United States an accompanying tariff of duties and taxes should be levied and collected as a military contribution, and that regulations for its administration should take effect and be in force in the ports and places occupied. Manila was captured August 13, and the next day the custom house was opened and taxes were collected according to the prior Spanish tariff up to November 10, 1898, until which date the order of July 12 had been suspended.

On the rehearing an order of the Military Governor of the Philippines of October 26, 1898, which embodied the full text of the customs tariff and regulations, was brought forward, and was in all essential respects a repetition of the order of July 12.

The Porto Rican cases were decided May 27, 1901, and in June the Secretary of War cabled the commission at Manila that: "The most obvious distinction between the status of Porto Rico and the Philippines, after the cession, indicated in the opinions of the court, is in the fact that Porto Rico was at the time of cession in full peaceable possession, while a state of war has continued in the Philippines. As the question of the President's power to impose duties in the Philippine Islands under the existing conditions of military occupation has not been decided by the court, the President has determined to continue to impose duties as heretofore."

Undoubtedly the order of July 12, 1898, contemplated vessels from America as well as others, yet that order, having been made in time of war, for a military contribution, when the Philippines did not belong to us, must be taken to have contemplated them, as it contemplated those from other countries, as vessels foreign to the country, and to have imposed the tax upon them qua foreign. The military tax was, so to speak, a seizure of Spanish revenues. That was what the order meant

VOL. CCI-32

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when it was passed, and a change of circumstances did not change its meaning. Neither was the meaning changed by any amendment. The ground on which it was kept in force by the Secretary of War, June 8, 1901, was that the Philippines were still in a state of war. If that view had been correct the order would have applied and would have had lawful effect, but it turned out not to be correct.

The ratification may be assumed to apply to the order as actually made, and not to have been limited to such an order or so much of this order as the President had a right to make. But it does not construe the order, and as it confines the ratification to actions in accordance with the order and amendments, the question what actions were in accordance with them is for us. The statute does not ratify all actions or all collections of taxes, as it easily might have done, but only actions in accordance with the order. If the order properly construed did not purport to apply to vessels unless they were either enemy or foreign, then when a vessel ceased to be foreign the order did not apply, and a tax upon such a vessel not being in accordance with the order is not ratified by the act. This construction is favored by the consideration that the suits had been begun when the act of July 1, 1902, was passed, and that, even if Congress could deprive plaintiffs of their vested rights in process of being asserted, Hamilton v. Dillin, 21 Wall. 73, still it is not to be presumed to do so on language which, literally taken, has

a narrower sense.

Moreover, the act of July, 1902, was passed with full knowledge and after careful consideration of the decisions of this court, and Congress was aware that grave doubt, at least, had been thrown upon its power to ratify a tax under circumstances like the present. De Lima v. Bidwell, 182 U. S. 1, 199, 200. This affords a special reason for believing that if it had intended to encounter the limitations of that case it would have done so in clear words from which there was no escape.

It should also be remembered that there was a powerful opposition in Congress and that the phraseology of the act prob

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