
    A. S. LASCELLES & CO. v. THE UNITED STATES.
    [No. 27402.
    Decided March 16, 1914.]
    
      On the Proofs.
    
    The purpose of this suit is to recover the amount paid by the plaintiff as import duties on merchandise shipped from Porto Rico to and received at the port of New York between December 10, ■ 1898, when the treaty of peace between the United States and Spain was signed, and April 11, 1899, the date on which the ratification of said treaty was exchanged by said Governments.
    I. The island of Porto Rico did not, in law, become a part of the United States until on and after the treaty had been duly signed by both the parties thereto and the ratifications of the same had been exchanged.
    II. The right to exact duty upon merchandise imported from the island of Porto Rico to and into the United States prior to April 11, 1899, the date of the ratification and promulgation of the treaty between the United States and Spain, was within the meaning and intent of the tariff law of the United States.
    
      
      The Reporter’s statement of tbe case:
    Tbe following are tbe facts of tbe case as found by the court:
    I. At the time of the payment of tbe duties hereinafter referred to the claimants, Eliot A. de Pass, Charles E. de Mercado, Benjamin Odio, and one Alfred S. Lascelles, since deceased, were copartners trading under the firm name of A. S. Lascelles & Co. The claimants, Eliot A. de Pass and Charles E. de Mercado, are subjects of the King of Great Britain, and the claimant, Benjamin Odio, is a citizen of the United States. Said Alfred S. Lascelles died in or about the year 1901, leaving the claimants the only surviving members of said firm at the time of the filing of the petition herein.
    II. On the 10th day of December, 1898, a treaty of peace between the United States and the Kingdom of Spain was signed by the duly authorized representatives of both Governments. The said treaty was ratified by the Senate of the United States on the 6th day of February, 1899, and by the Queen Kegent of Spain and the Spanish Cortes on the 19th day of March, 1899, and the ratifications thereof were exchanged at the city of Washington, in the District of Columbia, on the 11th day of April, 1899, and on the same date said treaty was proclaimed by the President of the United States.
    III. A protocol providing for the cessation of hostilities and the making of the said treaty of peace was signed by the duly authorized representatives of both Governments on the 12th day of August, 1898. Said protocol contained the following provisions with reference to the island of Porto Bico:
    “Article II. Spain will cede to the United States the island of Porto Bico and other islands now under Spanish sovereignty in the West Indies. * * *
    “Aeticle IY. Spain will immediately evacuate * * * Porto Bico and other islands now under Spanish sovereignty in the West Indies. * * * Each Government will within ten days after signing this protocol appoint other commissioners who shall within thirty days after the signing of this protocol meet at San Juan in Porto Bico for the purpose of arranging and carrying out the details of the aforesaid evacuation of Porto Eico and other islands now under Spanish sovereignty in the West Indies.
    “Article VI. Upon the conclusion and signing of this protocol hostilities between the two countries shall be suspended * *
    IV. The said treaty provided with reference to the island of Porto Eico as follows:
    “Article II. Spain cedes to the United States the island of Porto Eico and other islands now under Spanish sovereignty in the West Indies. * * *
    “Article VIII. In conformity with the provisions of Articles I, II, and III of this treaty, Spain relinquishes in Cuba and cedes in Porto Eico and other islands of the West Indies, in the island of Guam, and in the Philippine Archipelago all the buildings, wharves, barracks, forts, structures, public highways, and.other immovable property which, in conformity with law, belong to the public domain, and as such belong to the Crown of Spain.”
    V. On various dates between the 10th day of December, 1898, and the 11th day of April, 1899, the claimants brought from the port of Ponce and other ports in the said island of Porto Eico to the port of New York large quantities of sugar, all the growth of said island of Porto Eico, upon various vessels, each of which vessels made a voyage from the port in the island of Porto Eico to the port of New York, in the State of New York.
    VI. On the date of the arrival of such vessels at the said port of New York the collector of customs of the United States for the said port, under the color of his office as collector and through the exercise of the powers and authority vested in him for the purpose of the performance of his duties as such collector, required the said sugars, which then were the property of the claimants, to be entered at the customhouse as if they had been imported from a foreign country, and demanded from the claimants as alleged customs duties the sums of money hereinafter stated in detail.
    VII. The names of the said vessels, the dates of their arrival, the number of packages of sugar belonging to the claimants on such vessels, and the amounts assessed thereon by the said collector of customs and paid by the claimants, and the dates of payment are as follows:
    
      
    
    VIII. The claimants were compelled to pay the amounts aforesaid to the said collector of customs in order to obtain possession of their goods.
    IX. At the time of the making of each of the payments aforesaid the claimants, by their protest in writing duly made, protested against the action of the said collector of customs in so demanding and collecting any sum of money from them whatever as duties upon said sugars or any part thereof upon the express ground that Porto Eico was not at the date of the arrival of each of said vessels a foreign country and that the sugars were, as claimed by them, not “ imported.”
    X. The collector of customs paid into the Treasury of the United States the total amount so collected by him from the claimants, to wit, $113,033.63, and no portion thereof has ever been repaid to the claimants.
    
      Mr. II. M. Ward for the plaintiff.
    This question arises upon the following facts:
    A protocol providing for the cessation of hostilities between Spain and the United States, and for the making of a treaty of peace, was signed by the duly authorized representatives of both Governments on August 12, 1898. Said protocol contains the following provisions with, reference to the island of Porto Rico:
    “Article XI. Spain will cede to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies. * * *
    “Article IV. Spain will immediately evacuate * * * Porto Rico and other islands now under Spanish sovereignty in the West Indies. * * * Each Government will, within ten days, appoint commissioners, who shall, within thirty days from the signing of this protocol, meet at San Juan, in Porto Rico, for the purpose of arranging and carrying out the details of the aforesaid evacuation of Porto Rico and other islands now under Spanish sovereignty in the West Indies.
    “Article VI. Upon the conclusion and.signing of this protocol hostilities between the two countries shall cease.” •i*
    Immediately thereafter, and in conformity with the said protocol, Spain ceded said island of Porto Rico to the United States, relinquished her possession and sovereignty thereof, withdrew all the Spanish forces on said island, and delivered all the public property on said island to the United States, and prior to December 10, 1898, the United States had complete possession of said island of Porto Rico.
    On the 10 th day of December, 1898, a treaty of peace between the United States and the Kingdom of Spain was signed by the duly authorized representatives of both Governments. The said treaty was ratified by the Senate of the United States on the 6th day of February, 1899, and by the Queen Regent of Spain and the Spanish Cortes on the 19th day of March, 1899, and the ratifications thereof were exchanged at the city of Washington on the 11th day of April, 1899, and on the same date said treaty was proclaimed by the President of the United States.
    The said treaty provides, with reference to the island of Porto Rico, as follows:
    “Article II. Spain cedes to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies.” * * *
    “Article VIII: In conformity with the provisions of Article II of this treaty, Spain * * * cedes in Porto Rico and the other islands in the West Indies * * * all the buildings, wharves, forts, barracks, fort structures, public highways, and other immovable property which in conformity with law belong to the public domain and as such belong to the Crown of Spain.”
    Upon the facts, the sole question of law involved is, whether at the dates of arrival of the respective vessels the articles brought on those vessels from the island of Porto Rico to the port of New York were "imported from a foreign country” within the meaning of the tariff law of the United States then in force.
    This court has jurisdiction of the subject matter of the action. This point is settled by the decisions of the Supreme Court of the United States in Dooley v. United States, 182 U. S., 222, and in De Lima v. BidweU, 182 U. S., 1. In the former of these cases the court held that an action to recover duties paid in the island of Porto Rico upon articles brought from the United States could be maintained in this court, and in the latter of these cases the court held that an action could be maintained against the collector of customs to recover duties paid on articles brought from Porto Rico after April 11, 1899, the date when the ratifications of the treaty of peace were exchanged and the treaty promulgated, and that goods so brought were not "imported from a foreign country,” so that the provisions of the tariff laws with respect to proceedings before the then Board of General Appraisers had no application. A fortiori the action can be maintained against the United States rather than the collector to recover the duties paid on articles brought from Porto Rico.
    The cargoes of sugar involved in this case were not "imported from a foreign country” within the meaning of the tariff laws of the United States then in force.
    In considering this point we are bound at the outset to say that the Supreme Court of the United States, in the case of Dooley v. United States, ■ 182 U. S., 222, considered the legality of the exaction of duties upon articles brought from the United States into Porto Rico from August, 1898, to April, 1899, which covered the period referred to in the petition in this case, and, though the point was not involved, as that cáse was brought to recover only duties exacted between April 11, 1899, the date of the ratification, and May 1, 1900, when the Foraker Act took effect, decided that such duties were lawfully exacted, and by implication held that goods brought from Porto Rico to the United States were then subject to duties. The case which concerned duties collected prior to April 11, 1899, Armstrong v. United States, 182 U. S., 243, was argued by different counsel and the exact point involved in the case at bar was not clearly presented.
    In the Dooley case, at page 230, the court says:
    “In their legal aspect, the duties exacted in this case were of three classes: (1) The duties prescribed'by General Miles under order of July 26, 1898, which merely extended the existing regulations; (2) the tariffs of August 19, 1898, and February 1, 1899, prescribed by the President as Commander in Chief, which continued in effect until April 11, 1899, the date of the ratification of the treaty and the cession of the island to the United States; (3) from the ratification of the treaty to May 1, 1900, when the Foraker Act took effect.
    “There can be no doubt with respect to the first two of these classes, namely, the exaction of duties under the war power, prior to the ratification of the treaty of peace. While it is true the treaty of peace was signed December 10, 1898, it did not take effect upon individual rights until there was an exchange of ratifications. Haver v. Ydicer, 9 WaU, 32.”
    The court then, after discussing the cases of New Orleans v. Steamship Oo., 20 Wall., 387, 393; Gross v. Harrison, 16 How., 164, and other authorities, says at page 233, with regard to the period between August 12, 1898, and April 11, 1899:
    “The United States and Porto Rico were still foreign countries with respect to each other, and the same right which authorized us to exact duties upon merchandise imported from Porto Rico to the United States authorized the military commander in Porto Rico to exact duties upon goods imported into that island from the United States. The fact that, notwithstanding the military occupation of the United States, Porto Rico remained a foreign country within the revenue laws is established by the case of Fleming v. Page, 9 How., 603, in which we held that the capture and occupation of a Mexican port during our war with that country did not make it a part of the United States, and that it still remained a foreign country within the meaning of the revenue laws. The right to exact duties upon goods imported into Porto Rico from New York arises from the fact that New York was still a foreign country with respect to Porto Rico, and from the correlative right to exact at New York duties upon merchandise imported from that island.”
    This all-embracing language of the Supreme Court would appear to dispose of every question involved in this case.
    
      Mr. G. F. Jones, with whom was Mr. Assistant Attorney General Huston Thompson, for the defendants.
   AtkiNsoN, Judge,

delivered the opinion of the court:

Claimants instituted this suit February 7, 1905, to recover from the United States $113,083.68, which the findings show was paid by them as import dues on merchandise shipped from the island of Porto Rico into the port of the city of New York on various dates between December 10,1898, when the treaty of peace between Spain and the United States was signed, and April 11, 1899, the date on which the ratifications of said treaty were exchanged by said Governments.

No question of fact is involved, it being conceded that the duties were paid in the manner fully set forth in Finding YII after protest in writing had been by claimants formally made to the collector of customs at the port of New York. The only question, therefore, is one of law — namely, Was the island of Porto Rico, at the dates of the arrival of claimants’ vessels at the port of New York, a foreign country within the meaning of the tariff laws of the United States then in force?

It is contended by plaintiff’s counsel that all of the tariff duties were paid to the collector of the port of New York after the ratification of the treaty with Spain by the United States, and four out of the seven items were paid to the collector after the ratification of the treaty by the Spanish Cortes; and inasmuch as Spain had ceded the island of Porto Rico to the United States under Articles I, II, III, and VIII of the treaty and had withdrawn all her forces from said island; had relinquished her possession and authority thereto; had delivered all the public property on said island to the United States; and necessarily, prior to December 10, 1898, had complete possession of said island, it therefore should not longer be regarded as “foreign territory,” and the levying of tariff duties on its products shipped into the United States was not justifiable and should be refunded.

On the other hand, the defendants contend that Porto Rico did not in law become a province of the United States until on and after the treaty had been duly signed by both parties thereto and the ratifications of the same had been exchanged, which final action was taken on April 11, 1899, and on that date, and not before, it ceased to be “ foreign territory.” Necessarily, therefore, it became the duty of the Customs Department of the United States Government to levy and collect from the'claimants tariff duties within the meaning of the existing revenue laws upon all articles shipped from Porto Rico prior to the ratifications and exchange of said treaty.

Even if this particular feature of the case had not previously been passed upon by the Supreme Court, we would regard the above contention as logical, because Articles I, II, III, and VIII of the treaty are no more than a proviso to cede Porto Rico to the United States in the event a treaty of peace should be concluded and ratified. The treaty suspended hostilities and did not terminate them. Had it failed of ratification the suspension of hostilities would have terminated and war would have been resumed. Consequently Porto Rico could not be regarded as actually belonging to and being a part of the United States until after the ratification of the treaty on April 11, 1899, a period subsequent to the importations of the merchandise on which duties were paid by the claimants herein and to recover which this suit was instituted.

We accordingly decide that the right to exact duty upon merchandise imported from the island of Porto Rico to and into the United States prior to April 11, 1899, the date of the ratification and promulgation of the treaty between the United States and Spain, was within the meaning and intent of the tariff law of the United States; and it follows that claimants’ petition must be dismissed and judgment rendered for the United States, which is accordingly ordered. Dooley v. United States, 182 U. S., 222; Armstrong v. United States, ibid., 243; McLeod v. United States, 229 U. S., 416, 432; Hijo v. United States, 194 U. S., 315.  