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was assessed in his place of residence for a piece of real estate situated outside of the assessing district. It might be argued that the tax could not be enforced against the citizen by personal remedies in the event that he failed to get the assessment set aside by certiorari. Under the dictum in the case of the City of New York v. McLean, 1 there would seem to be no question of the right of the State to collect the tax from the individual taxpayer, as it is within the State's power to provide for the collection by personal remedy of all taxes assessed against its citizens. As the assessors of the district where the citizen resided would have no jurisdiction to assess him for the real estate, their acts would be void, and a sale of the real estate under proceedings taken to collect the tax would probably not give good title. However, this case could hardly arise in practice, as no doubt all assessors would know the boundaries of their assessing districts, and it would hardly be assumed that they would attempt in the face of the Tax Law to assess a resident of their district for lands which they knew to be outside of their jurisdiction.

We have thus followed the development of the writ of certiorari through the decisions, and have noticed the important points in the practice that has grown up within recent years upon this comparatively novel form of remedyfor we must remember that it is only since the year 1880 that the writ has assumed such wide functions and been used to correct the ordinary errors made by tax assessors. In many instances it would seem that the Tax Law, outside of New York City, was simpler and more logical, both in its theory and practice, than the modifications of the remedy that the Charter has brought forth; but it can be safely said on the whole that most of the disputed territory regarding this writ has either been covered or been entered into, and that there are now few pits into which the practitioner need fall, if he has consulted the body of decisions upon this remedy.


157 App. Div., 601.

THE INSULAR CASES IN the last term of the Supreme Court there were 1 argued several cases involving the right of the United States to collect duties on merchandise passing between the mainland, and the islands occupied by them in the course of the late war, and afterwards ceded to them. At the close of the term the Court decided all but two of these Insular Cases as they are called.1 The opinions cover more than two hundred pages. They discuss and suggest many far-reaching questions, some of them novel. Their prophetic, political and historical passages do not always elucidate legal principles, though the governing law of the cases is the broadest and least technical in all our jurisprudence. They disclose nicely balanced and vigorously defended differences of opinion, going to the very root of our theories of government and public conduct; and most of the judges deem the leading judgments irreconcilable.?

My comment on the Insular Cases will not cover every question considered. My criticism may savor of prepossession so far as it is based upon views I advocated before the cases were decided, some of them, indeed, before the Treaty of Paris was signed ;3 views rejected in part by some of the judges, but not condemned by a united Court. But I shall present the salient features of the cases with such comment as my convictions dictate.

They are reported in Volume 182 of the Supreme Court Reports as follows : De Lima v. Bidwell, p. 1; Armstrong v. U. S., p. 243; Dooley v. U. S., p. 222 ; Downes v. Bidwell, p. 244; Goetze v. U. S., p. 221; Crossman v. U. S., p. 221 (an Hawaiian case); see also Huus v. Steamship Co., p. 392. The cases undecided are: Dooley v. U. S. (No. 2), and Pepke v. U.S. (the Fourteen Diamond Rings case).

2 See 182 U. S., pp. 201, 220, 239, 286.

3A Note on the Question of the Philippines, October 15, 1898; Con. stitutional Aspects of Annexation, Harvard Law Review, January, 1899; Congressional Record, January 11, 1899; Notes on the Law of Territorial Expansion, Congressional Record, May 31, 1900; The Law and Policy of Annexation, Longmans, Green & Co., 1901. I have referred to this book (cited as “ Annexation") for a fuller discussion of some of the questions noted in this article.

Interesting comments on the Insular Cases are made by Hon. George F. Edmunds and Hon. George S. Boutwell, in the North American Review for August; by Judge Baldwin in the Yale Review for August; by Hon. Charles E. Littlefield in an address before the American Bar Association, and by Professor Burgess, of Columbia University, in the Political Science Quarterly for September.

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The leading judgments in the Insular Cases are:

I. Prior to the exchange of ratifications of the treaty of Paris the United States military authorities in occupation of Porto Rico lawfully imposed duties on goods imported from the United States. 1

To this all the judges assented, for the reason that Porto Rico was then merely foreign territory in our military possession.

II. After the exchange of ratifications, and prior to the passage of the Foraker Act (April 12, 1900), the United States authorities erred in enforcing the Tariff Act against goods brought to our mainland from Porto Rico,' and in imposing duties on goods brought to Porto Rico from our mainland. 3

These judgments were approved by a bare majority of the judges, whose united opinions were voiced in each case by Justice Brown.

III. The Government is not obliged to refund duties collected under the Foraker Act on goods brought from Porto Rico to our mainland. 4

Again the judges divide five to four, but Justice Brown is now ranged for the judgment with the four judges who dissented from the opinions of the Court delivered by him in the De Lima and Dooley cases, and these judges now condemn the reasons employed to support this judgment, which they support for antagonistic reasons. Here is remarkable discord and it is important to consider its effect. The object of a suit at law is a final judgment which binds the parties without regard to the reasons on which it may be founded. The permanent interest in a suit depends usually upon an opinion of the Court disclosing the reasons for its judgment. When the judgment is supported by clear and harmonious reasoning it is a vehicle for a principle of law. Discordant reasoning leaves

Dooley v. U. S., 182 U. S., 222. 2 De Lima v. Bidwell, 182 U. S., 1. 3 Dooley v. U. S., 182 U. S., 222. * Downes v. Bidwell, 182 U. S., 244.

it a naked order addressed to the parties, without the opinion of the Court which is needful to promulgate an authoritative principle.

The distinction between the transitory interest of a judgment and the authority of an opinion is suggested in a series of cases in the Supreme Court. In Ogden v. Saunders, 1 the first question was whether a State legislature is forbidden by the Federal Constitution to pass a bankruptcy act. Four judges, including Justice Johnson, answered in the negative; three, including Chief Justice Marshall and Justice Story, dissented. Thus the question was resolved in favor of the States. The second question was whether a certificate of discharge in bankruptcy was effective against a citizen of another State. Again the judges divided four to three : Justice Johnson, supported by the three judges who had dissented on the first question, held that the certificate was not effective, and commenced the opinion by saying, "I am instructed by the majority of the “ Court finally to dispose of this cause. The present majority “ is not the same which determined the general question on “ the constitutionality of State insolvent laws with reference “ to the violation of the obligation of contracts. I now stand “ united with the minority in the former question, and there“ fore feel it due to myself and the community to maintain “my consistency."? A few years later William Wirt asked the Court whether Justice Johnson's second opinion in Ogden v. Saunders stood as the opinion of the Court, 3 evi. dently desiring to argue the question there discussed as still an open one, on the theory that the concurrence of the judges who had dissented on the main question was merely in the judgment, and not in the reasons. Chief Justice Marshall replied for the Court: “The judges who were in “ the minority of the Court upon the general question as to “ the constitutionality of State insolvent laws concurred in “the opinion of Mr. Justice Johnson in the case of Ogden v. “ Saunders. That opinion is therefore to be deemed the “ opinion of the other judges who assented to that judgment. Whatever principles are established in that opinion are to

112 Wheaton, 213.
212 Wheaton, 358.
3 Boyle v. Zacharie, 6 Peters, 348.

“ be considered as no longer open for controversy, but the “ settled law of the Court." Justice Story, delivering the opinion of the Court in Boyle v. Zacharie, 1 said, “The “ ultimate opinion delivered by Mr. Justice Johnson in the “ case of Ogden v. Saunders, 12 Wheaton, 213, 258, was “ concurred in and adopted by the three judges who “ were in the minority upon the general question of the

constitutionality of State insolvent cases, so largely dis“cussed in that case. It is proper to make this remark in “ order to remove an erroneous impression of the bar that it “ was his single opinion, and not of the three other judges “ who concurred in the judgment. So far as decisions upon “ the subject of State insolvent laws have been made by this “ Court they are to be deemed final and conclusive.” Justice Clifford prefaces a comment on these cases by saying, “ Misapprehension existed, it seems, for a time whether the “ second opinion delivered by Mr. Justice Johnson in that “ case [Ogden v. Saunders) was, in point of fact, the opinion “of a majority of the Court, but it is difficult to see any “ ground for such doubt. Referring to the opinion, it will “ be seen that he states explicitly that he is instructed to dis“ pose of the cause, and he goes on to explain that the “ majority on this occasion is not the same as that which “determined the general question previously considered."9

I have reviewed these cases at some length in order to show how clearly the Supreme Court contemplates the pos. sibility that a judgment may not carry an authoritative opinion. How completely this possibility is realized in the Downes case appears in the following excerpts from the official report: “Mr. Justice Brown * * * announced the conclusion and judgment of the Court.” “Mr. Justice White, with whom concurred Mr. Justice Shiras and Mr. Justice McKenna, uniting in the judgment of affirmance.” Then Justice White commences his opinion by saying: “ Mr. Justice Brown, in announcing the judgment of “affirmance, has in his opinion stated his reasons for his con“currence in such judgment. In the result I likewise con“ cur. As, however, the reasons which cause me to do so

16 Peters, 635, 643.
? Baldwin v. Hale, 1 Wallace, 223, 230.

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