dent, of five commissioners, "at least two of whom shall be residents of the Hawaiian Islands, who shall, as soon as reasonably practicable, recommend to Congress such legislation concerning the Hawaiian Islands as they shall deem necessary or proper."

The manifest purpose of these provisions was to continue in force in Hawaii the customs laws and regulations of that country, until, after the investigation of the commission, suitable legislation organizing the islands as a Territory of the United States could be framed, and agencies provided for putting in operation there the laws of this country. Until such time, Hawaii was not to be deemed a part of the United States for customs purposes. The resolution did not annex or make it "a part of the United States." The islands were annexed as "a part of the territory of the United States, subject to the sovereign dominion thereof." It is obvious that territory annexed or ceded to the United States becomes "a part of the territory of the United States," but it does not become "a part of the United States" in either a constitutional or legislative sense until Congress shall so determine. The act of April 30, 1900, to provide a government for the Territory of Hawaii," declares that the Constitution, except as therein otherwise provided, and laws of the United States not locally inapplicable, shall have the same force and effect in the Territory of Hawaii as elsewhere in the United States. It declares that all persons who were citizens of the Republic of Hawaii on August 12, 1898, are "citizens of the United States and citizens of the Territory of Hawaii." Obviously this provision opened the door into the United States of Chinese who were citizens of the Republic of Hawaii at the time mentioned. The act provides for a local government, makes the Territory an internal-revenue district, a customs district, and a judicial district, with the necessary Federal officers to put such laws into operation.

The ironclad operation of the Constitution in customs matters is repudiated by Congress even in this act, for it provides (sec. 93) that imports from the islands into the United States of dutiable articles not the product of the islands and imported into the islands from a foreign country after July 7, 1898, and before the passage of this act, should pay the same duties that are imposed upon the same articles when imported into the United States from a foreign country.

Of course, this was intended to frustrate any purpose of avoiding the customs laws of the United States by sending goods into Hawaii after the resolution of annexation in anticipation of opening the ports of the United States to merchandise from Hawaii upon the passage of the act organizing that Territory. This provision goes hand in hand with the provision of the resolution of annexation continuing the customs laws of Hawaii in force, and closing our ports to its goods until the neces sary preparations could be made for putting our customs laws and reg ulations into operation in the islands.

To conclude, Hawaii could not become a part of the United States for customs purposes without the consent of Congress. In the annexation resolution it was expressly provided that the customs regulations of the Republic of Hawaii should continue until Congress should extend the customs laws of the United States to the islands. It was not until the passage of the act of April 30, 1900, that the islands became a part of the United States for customs purposes by the extension of our laws to them.

JANUARY 7, 1901.

JOHN K. RICHARDS, Solicitor-General.

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1900.

ELIAS S. A. DE LIMA ET AL., PLAINTIFFS IN ERROR,

V.

GEORGE R. BIDWELL.

SAMUEL B. DOWNES ET AL., PLAINTIFFS IN ERROR,

HENRY W. DOOLEY ET AL., PLAINTIFFS IN ERROR,

V.

THE UNITED STATES.

HENRY W. DOOLEY ET AL., PLAINTIFFS IN ERROR,

V.

THE UNITED STATES.

CARLOS ARMSTRONG, APPELLANT,

THE UNITED STATES.

No. 456.

No. 507.

No. 501.

No. 502.

No. 509.

BRIEF FOR THE UNITED STATES IN REPLY.

I.

JURISDICTION.

As to cases No. 456, De Lima et al. v. Bidwell, and No. 507, Downes v. Bidwell.

Opposing counsel are driven in their several briefs on the subject of jurisdiction to take such divergent, inconsistent, and irreconcilable positions that the indulgence of the court is asked for a somewhat further examination of the subject.

The collecting officer of the Government, upon the arrival of the goods at the port of destination and their entry there by the importer, was justified and in duty bound under the law to regard them as imports, to assess and collect duty thereon, and to deposit the amount thereof in the Treasury.. For thus acting as the law requires he is indemnified against personal suit by section 25 of the customs administrative act of June 10, 1890. In exempting the collector from suit for any act done by him as collector, the United States assumes responsibility for any error on his part in the wrongful or illegal exacting of duties. It has permitted itself, under certain conditions, to be sued for the recovery of such duties. Without a compliance with the conditions imposed no suit can be maintained, nor can the United States be sued in any other way than it permits. If the collector can not be sued directly for his official act, or the United States at all unless in the way it permits, it can not be done indirectly. The act of the collector, done in pursuance of his official authority, and in accordance with his interpretation of the law or the instructions of his official superiors, is his official act. He does not perform it as an individual, but as an officer. The exemption of the collector from personal suit, or the United States from suit at all, unless in the way it permits, can not be overcome and the same result accomplished simply by the setting up of a claim by the importer. The assertion of the importer that the collector acted without authority of law (notwithstanding the fact of the entry of the goods and the admission thereby that they are imported), because the goods are not in fact imports, can not be permitted to subvert the system of customs collection.

In the Fassett case (142 U. S., 479) the vessel in controversy was claimed not to be an imported article. It was not entered. The collector seized it to enforce the payment of the duty claimed. Being maritime in character, a libel, the proper admiralty proceeding, was brought to secure its release. In like manner if, as counsel contend, the customs administrative act provides no remedy in these cases, the importer should have refused to make entry of the goods at the port of destination, and on the ground that the articles were not in fact imported, deny the right of the collector to exact duty thereon. If then the collecting officer should seize and detain the goods to compel payment of the duties claimed by him to be payable, a proceeding

would lie to release them.

Section 934 of the Revised Statutes would not be a bar to any such action. That section is as follows:

All property taken or detained by any officer or other person, under authority of any revenue law of the United States, shall be irrepleviable, and shall be deemed to be in the custody of the law and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.

If the opposing contention is correct, the property seized by the collector to compel the payment of duty would not be "property taken or detained" "under authority of any revenue law of the United States," because no revenue law or any other law could, in that view, invest him with such authority. The section has reference only to goods which are subject to customs duty and are taken or detained to compel payment thereof.

As to cases No. 456, De Lima et al. v. Bidwell, and No. 507, Dornes v. Bidwell.

In the main brief in the case of De Lima v. Bidwell, No. 456, it is stated, at page 8, that

The "remedy" and the "procedure" provided by the customs administrative act of June 10, 1890, have no application whatever to and are not available in cases which (like the present) are not customs cases at all (the merchandise not having been imported). Notwithstanding this admission that the De Lima case is not a customs case (and it would seem to apply as well to the Downes case), the same counsel in the Brief in Reply in Nos. 456 and 507, and in the Supplemental Brief in No. 507, rest the jurisdiction of the lower court upon subdivision 4 of section 629 of the Revised Statutes, which is claimed to confer jurisdiction upon the circuit court in "all suits at law or in equity arising under any act providing for revenue from imports or tonnage."

Counsel contend that these cases are not revenue cases, and yet they endeavor to maintain jurisdiction under a revenue statute. In other words, for the purpose of getting here the cases are not revenue cases, but for the purpose of staying here they are.

What constitutes a "revenue" case? It is clearly one which arises out of the collection of the revenue of the Government. Whether the goods in question in these cases are "imports" or not, the cases are revenue cases because they are brought to recover moneys collected by the officers of the United States, and turned into the Treasury as a part of the revenue of the Government.

Revenue cases are of several classes-customs, internal revenue, etc. If these are not customs cases, it would tax the ingenuity of counsel to suggest any other class of revenue cases to which they belong. They are customs-revenue cases. In a customs-revenue case there is now no implied contract on the part of the collecting officer to return the amount collected by him if the collection was not warranted by law. He is required to pay into the Treasury the moneys received by him in the exercise of his authority. If the only way authorized by Congress to secure its return does not give relief, the application should be to the legislature and not to the judiciary.