II. By MR. JUSTICE WHITE, with whom Mr. JUSTICE SHIRAS and MR. JUS- TICE MCKENNA concurred.
1. The government of the United States was born of the Constitution, and all powers which it enjoys or may exercise must be either derived ex- pressly or by implication from that instrument. Ever then, when an act of any department is challenged, because not warranted by the Constitution, the existence of the authority is to be ascertained by de- termining whether the power has been conferred by the Constitution, either in express terms or by lawful implication, to be drawn from the express authority conferred or deduced as an attribute which legiti- mately inheres in the nature of the powers given, and which flows from the character of the government established by the Constitution. In other words, whilst confined to its constitutional orbit, the govern- ment of the United States is supreme within its lawful sphere. Ib. 2. Every function of the government being thus derived from the Consti- tution, it follows that that instrument is everywhere and at all times potential in so far as its provisions are applicable. Ib.
3. Hence it is that wherever a power is given by the Constitution and there is a limitation imposed on the authority, such restriction operates upon and confines every action on the subject within its constitutional lim- its. Ib.
4. Consequently it is impossible to conceive that where conditions are brought about to which any particular provision of the Constitution applies its controlling influence may be frustrated by the action of any or all of the departments of the government. Those departments, when discharging, within the limits of their constitutional power, the duties which rest on them, may of course deal with the subject com- mitted to them in such a way as to cause the matter dealt with to come under the control of provisions of the Constitution which may not have been previously applicable. But this does not conflict with the doctrine just stated, or presuppose that the Constitution may or may not be applicable at the election of any agency of the govern- ment. Ib.
5. The Constitution has undoubtedly conferred on Congress the right to create such municipal organizations as it may deem best for all the territories of the United States whether they have been incorporated or not, to give to the inhabitants as respects the local governments such degree of representation as may be conducive to the public well- being, to deprive such territory of representative government if it is considered just to do so, and to change such local governments at dis- cretion. Ib.
6. As Congress in governing the territories is subject to the Constitution, it results that all the limitations of the Constitution which are appli- cable to Congress in exercising this authority necessarily limit its power on this subject. It follows also that every provision of the Consti- tution which is applicable to the territories is also controlling therein. To justify a departure from this elementary principle by a criticism of the opinion of Mr. Chief Justice Taney in Scott v. Sandford, 19 How. 393, is unwarranted. Whatever may be the view entertained of
the correctness of the opinion of the court in that case, in so far as it interpreted a particular provision of the Constitution concerning slavery and decided that as so construed it was in force in the terri- tories, this in no way affects the principle which that decision an- nounced, that the applicable provisions of the Constitution were operative. Ib.
7. In the case of the territories, as in every other instance, when a provi- sion of the Constitution is invoked, the question which arises is, not whether the Constitution is operative, for that is self-evident, but whether the provision relied on is applicable. Ib.
8. As Congress derives its authority to levy local taxes for local purposes within the territories, not from the general grant of power to tax as expressed in the Constitution, it follows that its right to locally tax is not to be measured by the provision empowering Congress "To lay and collect Taxes, Duties, Imposts, and Excises," and is not restrained by the requirement of uniformity throughout the United States. But the power just referred to, as well as the qualification of uniform- ity, restrains Congress from imposing an impost duty on goods coming into the United States from a territory which has been incorporated into and forms a part of the United States. This results because the clause of the Constitution in question does not confer upon Congress power to impose such an impost duty on goods coming from one part of the United States to another part thereof, and such duty besides would be repugnant to the requirement of uniformity throughout the United States. Ib.
III. By MR. JUSTICE GRAY.
1. The civil government of the United States cannot extend immediately, and of its own force over territory acquired by war. Such territory must necessarily, in the first instance, be governed by the military power under the control of the President as commander in chief. Civil gov- ernment cannot take effect at once, as soon as possession is acquired under military authority, or even as soon as that possession is confirmed by treaty. It can only be put in operation by the action of the appropriate political department of the Government at such time and in such degree as that department may determine. Ib.
2. In a conquered territory, civil government must take effect, either by the action of the treaty-making power, or by that of the Congress of the United States. The office of a treaty of cession ordinarily is to put an end to all authority of the foreign government over the territory; and to subject the territory to the disposition of the Government of the United States. Ib.
3. The government and disposition of territory so acquired belong to the Government of the United States, consisting of the President, the Sen- ate, elected by the States, and the House of Representatives, chosen by and immediately representing the people of the United States. Ib. 4. So long as Congress has not incorporated the territory into the United States, neither military occupation nor cession by treaty makes the con- quered territory domestic territory, in the sense of the revenue laws.
But those laws concerning "foreign countries" remain applicable to the conquered territory, until changed by Congress. Ib.
5. If Congress is not ready to construct a complete government for the con- quered territory, it may establish a temporary government, which is not subject to all the restrictions of the Constitution. Ib.
1. By the Customs Administrative Act of 1890 an appeal is given from the decision of the collector "as to the rate and amount of the duties chargeable upon imported merchandise,” to the Board of General Ap- praisers, who are authorized to decide" as to the construction of the law and the facts respecting the classification of such merchandise, and the rate of duties imposed thereon under such classification;" but where the merchandise is alleged not to have been imported at all, but to have been brought from one domestic port to another, the Board of General Appraisers has no jurisdiction of the case, and an action for money had and received will lie against the collector to recover back duties as- sessed by him upon such property, and paid under protest. De Lima v. Bidwell, 1.
2. With the ratification of the treaty of peace between the United States and Spain, April 11, 1899, the island of Porto Rico ceased to be a "for- eign country" within the meaning of the tariff laws. Ib.
3. Whatever effect be given to the act of March 24, 1900, applying for the benefit of Porto Rico the duties received on importations from that is- land after the evacuation by the Spanish forces, it has no application to an action brought before the act was passed. Ib. See CONCURRENCE IN JUDGMENT, CUSTOMS DUTIES;
1. Duties upon imports from the United States to Porto Rico, collected by the military commander and by the President as Commander-in-Chief, from the time possession was taken of the island until the ratification of the treaty of peace, were legally exacted under the war power. Dooley v. United States, 222.
2. As the right to exact duties upon importations from Porto Rico to New York ceased with the ratification of the treaty of peace, the correlative right to exact duties upon imports from New York to Porto Rico also ceased at the same time. Ib.
See CONCURRENCE IN JUDGMENT, BUT NOT IN OPINION;
CONSTITUTIONAL LAW, 1, 2, 3;
Park street is a public highway in the northwest section of the city of
Washington. For some days before the accident which was the ground of this action, a steam roller had been used in connection with the work of resurfacing the street with macadam. This roller became disabled, and was placed close to the south curb of the street, a canvas cover was placed over it, and it was left there for two days. On the second day the horse of the plaintiff in error, being driven along the street, be- came restive from the flapping of the canvas cover, reared, and upset the vehicle, and threw out the plaintiff, injuring him. Held, that the District of Columbia was not liable for the injuries which the plaintiff so suffered. District of Columbia v. Moulton, 576.
1. The essential elements of due process of law are notice and opportunity to defend, and in determining whether such rights are denied, the court is governed by the substance of things and not by mere form. Simon v. Craft, 427.
2. A person charged with being of unsound mind is not denied due process of law by being refused an opportunity to defend, when, in fact, actual notice was served upon him of the proceedings, and when, if he had chosen to do so, he was at liberty to make such defences as he deemed advisable. Ib.
3. The due process clause in the Fourteenth Amendment to the Constitu- tion does not necessitate that the proceedings in a state court should be by a particular mode, but only that there shall be a regular course of proceedings, in which notice is given of the claim asserted, and an opportunity afforded to defend against it. Ib.
4. This court accepts as conclusive the ruling of the supreme court of Ala- bama that the jury which passed upon the lunacy proceeding considered in this case was a lawful jury, that the petition was in compliance with the statute, and that the asserted omissions in the recitals in the ver- dict and order thereon were at best but mere irregularities which did not render void the order of the state court, appointing a guardian. Ib.
INDIAN TERRITORY COMMISSIONERS.
1. In 1896, commissioners, appointed by Judges of the United States Court in the Indian Territory were inferior officers, not holding their offices for life, or by any fixed tenure, but subject to removal by the appoint- ing power. Reagan v. United States, 419.
2. Commissioners appointed by that court prior to the act of March 1, 1895, were entitled to reappointment under that act, but were removable at pleasure unless at that date, or at the date of removal, causes for removal were prescribed by law. Ib.
3. As no causes for removal had been prescribed by law at the date of re- moval of claimant in 1896, he was subject to removal by the judge of his district, and the action of that judge in removing him was not open to review in an action for salary. Ib.
1. The question whether the record and judicial proceedings in the Michigan court received full faith and credit in the courts of Illinois is one for this court to consider and determine; and it holds that, upon the facts disclosed in the record, the courts of Illinois did give to the judgment and judicial proceedings of the state court of Michigan full faith and credit, within the meaning of the Constitution. Jacobs v. Marks, 583. 2. The judgment in question in this case did not necessarily import that the plaintiff had received satisfaction of her claim. Ib.
1. The Court of Claims, and the Circuit Courts, acting as such, have juris- diction of actions for the recovery of duties illegally exacted upon merchandise, alleged not to have been imported from a foreign country. Dooley v. United States, 222.
2. Under the circumstances set forth in its opinion this court thinks that the rule respecting appeals to the Court of Appeals of the District of Columbia must receive the interpretation here which was given to it by the Court of Appeals. United States v. Alvey, 456.
The action of the Supreme Court of Illinois in this case on April 17, 1901, was a full compliance with the mandate of this court in this case, re- ported 177 U. S. 51. Lake Street Elevated Railroad Co. v. Farmers' Loan and Trust Co., 417.
1. The rights conferred upon the locators of mining locations by Rev. Stat. section 2322, are not subject to the right of way expressed in § 2323, and are not limited by § 2336. Calhoun Gold Mining Co. v. Ajax, Gold Mining Co., 499.
2. As to § 2336, by giving to the oldest or prior location, where veins unite, all ore or mineral within the space of intersection, and the vein below the point of union, the prior location takes no more, notwithstanding that § 2322 gives to such prior location the exclusive right of possession and enjoyment of all the surface included within the limits of the loca- tion, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward, vertically. Held, that § 2336 does not conflict with § 2332, but supplements it. Ib.
3. A locator is not confined to the vein upon which he based his location, and upon which the discovery was made. Ib.
4. A patent is not simply a grant for the vein, but a location gives to the locator something more than the right to the vein which is the subject of the location.
5. Patents are proof of the discovery. They relate back to the location of the claims, and cannot be collaterally attacked. Ib.
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