FULLER, C. J., Harlan, Brewer and PECKHAM, JJ., dissenting.

exclusive delegation to Congress of the power to regulate commerce did not embrace commerce between the States and Territories, the interference by the States with such commerce might be justified.

Again, if, in any view, these duties could be treated as other than custom duties, the result would be the same, inasmuch as the goods were articles exported from New York, and there was a total lack of power to lay any tax or duty on such articles.

The prohibition on Congress is explicit, and noticeably different from the prohibition on the States. The State is forbidden to lay "any imposts or duties;" Congress is forbidden to lay "any tax or duty." The State is forbidden from laying imposts or duties "on imports or exports," that is, articles coming into or going out of the United States. Congress is forbidden to tax "articles exported from any State."

The plain language of the Constitution should not be made "blank paper by construction," and its specific mandate ought to be obeyed.

As said in Marbury v. Madison, "It is declared that 'no tax or duty shall be laid on articles exported from any State.' Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution, and only see the law?" 1 Cranch, 137, 178. Nor is the result affected by the fact that the collection of these duties was at Porto Rico.

In Brown v. Maryland, 12 Wheat. 419, 437, Chief Justice Marshall said: "An impost, or duty on imports, is a custom or a tax levied on articles brought into a country, and is most usually secured before the importer is allowed to exercise his rights of ownership over them, because evasions of the law can be prevented more certainly by executing it while the articles are in its custody. It would not, however, be less a duty or impost on the articles, if it were to be levied on them after they were landed. The policy and consequent practice of levying or securing the duty before, or on entering, the port, does not limit the power to that state of things, nor, consequently, the pro

FULLER, C. J., Harlan, Brewer and PECKHAM, JJ., dissenting.

hibition, unless the true meaning of the clause so confines it. What, then, are 'imports?' The lexicons inform us they are 'things imported.' If we appeal to usage for the meaning of the word, we shall receive the same answer. They are the articles themselves which are brought into the country. A duty on imports,' then, is not merely a duty on the act of importation, but is a duty on the thing imported. It is not, taken in its literal sense, confined to a duty levied while the article is entering the country, but extends to a duty levied after it has entered the country."

And so of exports. They are the things exported-the articles themselves. A duty on exports is not merely a duty on the act of exportation, but is a duty on the article exported, and the article exported remains such until it has reached its final destination. The place of collection is purely incidental, and immaterial on the question of power.

But we are told that these duties were laid, not on articles exported from the State of New York, but on articles imported into Porto Rico. The language used, however, precludes this contention, and there is nothing in the act to indicate that at some particular point on. a voyage articles exported were to cease to be such and to become imports, and nothing in the facts in this case to indicate a sea change of that sort as to these goods. The geographical origin of the shipment controls, and, as heretofore said, it is not material whether the duties were collectible at the place of exportation or at Porto Rico. They were imposed on articles exported from the State of New York, and before the articles had reached their ultimate destination and been mingled with the common mass of property on the island.

Chief Justice Marshall disposed of the suggested evasion thus: "Suppose revenue cutters were to be stationed off the coast for the purpose of levying a duty on all merchandise found in vessels which were leaving the United States for foreign countries; would it be received as an excuse for this outrage were the government to say that exportation meant no more than carrying goods out of the country, and as the prohibition to lay a tax on imports, or things imported, ceased the

FULLER, C. J., Harlan, Brewer and PECKHAM, JJ., dissenting.

instant they were brought into the country, so the prohibition to tax articles exported ceased when they were carried out of the country." 12 Wheat. 445.

There is no difference in principle between the case supposed and that before us. The course of transportation is arrested until the exaction is paid.

The proposition that because the proceeds of these duties were to be used for the benefit of Porto Rico they might be regarded as if laid by Porto Rico itself with the consent of Congress, and were, therefore, lawful, will not bear examination. No money can be drawn from the Treasury except in consequence of appropriations made by law. This act does not appropriate a fixed sum for the benefit of Porto Rico, but provides that the money collected, and collected from citizens of the United States in every port of the United States, shall be placed in a separate fund or subsequently in the treasury of Porto Rico, to be expended for the government and benefit thereof. And although the destination of the proceeds in this way were lawful; it would not convert duties on articles exported from the States into local taxes.

.

States may, indeed, under the Constitution, lay duties on foreign imports and exports, for the use of the Treasury of the United States, with the consent of Congress, but they do not derive the power from the general government. The power preëxisted, and it is its exercise.only that is subjected to the discretion of Congress.

Congress may lay local taxes in the Territories, affecting persons and property therein, or authorize territorial legislatures to do so, but it cannot lay tariff duties on articles exported from one State to another, or from any State to the Territories, or from any State to foreign countries, or grant a power in that regard which it does not possess. But the decision now made recognizes such powers in Congress as will enable it, under the guise of taxation, to exclude the products of Porto Rico from the States as well as the products of the States from Porto Rico; and this notwithstanding it was held in De Lima v. Bidwell, 182 U. S. 1, that Porto Rico after the ratification of the

Counsel for Parties.

treaty with Spain ceased to be foreign and became domestic territory.

My brothers Harlan, Brewer and PECKHAM Concur in this dissent. We think it clear on this record that plaintiffs were entitled to recover and that the judgment should be reversed.

FOURTEEN DIAMOND RINGS, EMIL J. PEPKE, CLAIMANT v. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 153. Argued December 17, 18, 19 and 20, 1900.-Decided December 2, 1901.

1. The ruling in De Lima v. Bidwell, 182 U. S. 1, reaffirmed and applied. 2. No distinction, so far as the question determined in that case is concerned, can be made between the Philippines and the Island of Porto Rico, after the ratification of the treaty of peace between the United States and Spain, April 11, 1899, and certainly not

(a) Because of the passage by the Senate alone, by a majority, but not two thirds of a quorum, of a joint resolution in respect to the intention of the Senate in the ratification;

(b) Or, because of the armed resistance of the native inhabitants, or of uncivilized tribes, in the Philippines, to the dominion of the United States; (c) Or, because one of the justices who concurred in the judgment in De Lima v. Bidwell, also concurred in the judgment in Downes v. Bidwell, 182 U. S. 244.

The statement of the case will be found in the opinion of the court. The case was argued December 17, 18, 19 and 20, 1900. Goetze, Appellant, v. United States was heard at the same time. Leave was granted in this case to Mr. Alexander Porter Morse to file a brief on behalf of interested parties.

Mr. Everit Brown and Mr. Edward C. Perkins for appellant.

Mr. Lawrence Harmon for plaintiff in errror.

Opinion of the Court.

Mr. Charles H. Aldrich for plaintiff in error.

Mr. Attorney General for the United States.

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

Emil J. Pepke, a citizen of the United States and of the State of North Dakota, enlisted in the First Regiment of the North Dakota United States Volunteer Infantry, and was assigned for duty with his regiment in the island of Luzon, in the Philippine Islands, and continued in the military service of the United States until the regiment was ordered to return, and, on arriving at San Francisco, was discharged September 25,

1899.

He brought with him from Luzon fourteen diamond rings, which he had there purchased, or acquired through a loan, subsequent to the ratification of the treaty of peace between the United States and Spain, February 6, 1899, and the proclamation thereof by the President of the United States, April 11,

1899.

In May, 1900, in Chicago, these rings were seized by a customs officer as having been imported contrary to law, without entry, or declaration, or payment of duties, and an information was filed to enforce the forfeiture thereof.

To this Pepke filed a plea setting up the facts, and claiming that the rings were not subject to customs duties; the plea was held insufficient; forfeiture and sale were decreed; and this writ of error was prosecuted.

The tariff act of July 24, 1897, 30 Stat. 151, in regulation of commerce with foreign nations, levied duties "upon all articles imported from foreign countries."

Were these rings, acquired by this soldier after the ratification of the treaty was proclaimed, when brought by him from Luzon to California, on his return with his regiment to be discharged, imported from a foreign country?

This question has already been answered in the negative, in respect of Porto Rico, in De Lima v. Bidwell, 182 U. S. 1, and unless the cases can be distinguished, which we are of opinion they cannot be in this particular, that decision is controlling.

VOL. CLXXXIII-12