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II. By MR. JUSTICE WHITE, with whom Mr. JUSTICE SHIRAS and MR. Jus-

TICE MOKENNA 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 inberes 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.
6. 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. 16.
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 putin 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 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. 1b.
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.

CONSTITUTIONAL LAW.
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;
BUT NOT IN OPINION;

JURISDICTION, 1;
DUE PROCESS OF LAW.

CONTRACT.
See TRUST.

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;
JURISDICTION.

DISTRICT OF COLUMBIA.
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.

DUE PROCESS OF LAW.
1. The essential elements of due process of law aro notice and opportunity

to defend, and in determining whetber 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. Io.

EVIDENCE.

See PRACTICE.

INDIAN TERRITORY COMMISSIONERS.
1. In 1896, commissioners, appointed by Judges of the United States Court
JUDGMENT.
1. The question whether the record and judicial proceedings in the Michigan

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. IV.

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.

JURISDICTION.
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.

MANDATE OF THIS COURT.
The action of the Supreme Court of Ilinois 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.

MINERAL LANDS.
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
thát § 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. Ib.
5. Patents are proof of the discovery. They relate back to the location of

tho claims, and cannot be collaterally attacked. Ib.

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