
    HO TUNG & CO. v. THE UNITED STATES.
    (No. 21968.
    Decided February 25, 1907.)
    
      On the Proofs.
    
    The claimants import goods from Hongkong to Manila in August, 1898, and pay the Spanish duties thereon, as required by military authority. At this time the President has issued an order establishing a lower tariff of duties and taxes “ to he levied and collected, as military contribution.” At the time the claimants’ cargo is shipped and when the duty is paid neither they nor the collector of the port is aware of the issuance of the President’s order. The question in the case is, When did the order of the President go into effect at Manila — on the day of its date or when it was received and put in force?
    I. Upon the occupation of the port of Manila by our military forces it was their duty to respect and insist on enforcing the municipal laws then and there in force until the same might be changed by military authority.
    II. Until the treaty with Spain our possession of Manila was temporary and was not different from the usual military occupation of belligerent territory, and the United States could exercise only the restricted right of a belligerent.
    
      III. An order of the President as Commander in Chief would not be in force at Manila until it had been received and made known there.
    IV. The government at Manila prior to the treaty was a government de facto, military in character, and subject only to higher military authority.
    V.An order of the President providing a tariff for the Philippine Islands would not modify existing tariff regulations there until actually received and promulgated. The distinction between this case and Lapeyre’s (17 Wall. R., 191) pointed out.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. That the claimants, Pío Tung, Pío Fook, Ho Kom Tong, and Lo Cheung Shiu, partners trading as PIo Tung & Co., are residents of Hongkong, China, and subjects of Great Britain.
    II.- On July 13, 1898, the following military order was published at Washington by the Secretary of War :
    “ Wap. DEPARTMENT,
    “ Washington, July 13,1898.
    
    “ The following order of the President is published for the information and guidance of all concerned:
    . “ ‘ Executive Mansion, July 10, 1898.
    
    “ ‘ By virtue of the authority vested in me as Commander in Chief of the Army and Navy of the United States of America, I do hereby order and direct that, upon the occupation and possession of any ports and places in the Philippine Islands by the forces of the United States, the following tariff of duties and taxes, to be levied and collected as a military contribution, and regulations for the administration thereof shall take effect and be in force in the ports and places so occupied.
    “ ‘ Questions arising under said tariff and regulations shall be decided by the general in command of the United States forces in those islands.
    “ ‘ Necessary and authorized expenses for the administration of said tariff and regulations shall be paid from the collections thereunder.
    “ ‘Accurate accounts of collections and expenditures shall be kept and rendered to the Secretary of War.
    “ ‘ WlEEIAM MoKlNLEY.’
    
      “ Upon, the occupation of any ports or places in the Philippine Islands by the forces of the United States the foregoing-order will be proclaimed and enforced.
    “ E. A. AlgeR,
    
      “ Secretary of War.”
    Paragraph 10 of the “ Customs Tariif and Begulations ” accompanying the order provided that “ any objections to the assessment to duty must be filed by the importer'before the payment by him of the same, and no refund of duty will he made thereafter.”
    Before this order reached Manila the city had surrendered (August 13, 1898), and General Merritt, commander in chief of the United States forces in the Philippine Islands, on August 19, 1898, opened the custom-house at Manila to American and neutral vessels, and continued the Spanish tariff in force just prior to the American occupation.
    Article 202 of the general provisions of the rules and regulations of the Spanish tariff provided that:
    
      “ From the rulings of the Manila custom-house appeals may be had to the Treasury Department through the collector of customs at that port. * * *
    
    
      “ The time allowed for making appeals not especially provided for in these regulations shall be ten days, after the expiration of which the rulings shall be considered final.”
    Before the proclamation of the President’s order of July 12, 1898 (on October 3, 1898), Capt. Joseph S. Evans, commissary of subsistence, United States Volunteers, and an expert on revenue matters, was ordered to report to the collector of customs at Manila, P. I., for special service, and was directed to make a careful study of trade conditions at that port and of the United States customs tariff and regulations accompanying said order, “ with a view to recommending such modifications as would put them in the best practicable shape for promulgation.” Under the direction, and with the assistance of the collector of customs, Captain Evans prepared and submitted his report on October 24,1898. “ His report having been approved, the tariff regulations, which are practically a literal copy of the Spanish regulations that went into force under the royal decree of January 7,1891, were printed in pamphlet form and issued as ‘ United States Provisional Customs Tariff and Regulations in the Philippine Islands,’ to take effect November 10, 1898.”
    The Executive order of July 12, 1898, was suspended until November 10, 1898, by the following order of the Secretary of War:
    “ War DEPARTMENT,
    “ Washington, October IS, 1898.
    
    “ By direction of the President, it is hereby ordered that the operation of the order dated July 12, 1898, establishing* the customs tariff and regulations for ports in the Philippine Islands in possession of the United States, shall be suspended until the 10th day of November, 1898, when the same shall take effect and be in force.
    “ Until that time the Spanish tariff as now applied will be enforced and collected.
    “ R. A. Alger,
    
      “Secretary of War.”
    
    III. On August 20, 1898, the claimants shipped at Hong-kong for the port of Manila, P. I., by the steamship Sung-kiang 2,700 cases of comet oil (petroleum), and on August 24, 1898, by the steamship Tiasang, 12,198 cases of comet oil and 5,000 bags of Sperry’s flour. Prior to that, time the claimants had heard a rumor, through Rueter’s Telegram Company, that a tariff schedule along the lines of the Ding-ley tariff had been settled upon at Washington for the collection of duties in the Philippine Islands, and upon the strength of that information had entered into correspondence with Mr. Wildman, consul-general at Hongkong, who appears to have told them, upon the same information, that in his opinion customs duties would not be collected at Manila upon products of the United States.
    At the time tire cargoes were shipped, and when the duties were paid, neither the Ho Tung Company, Consul Wildnian, nor the collector at Manila had any knowledge of the issuance of the Presidential, order of July 12, 1898, and annexed tariff schedule, and outside of the invoices of the cargoes there is no evidence to indicate that the goods so shipped were products of the United States.
    IV. Po Guiyao, to whom the cargo was consigned, called upon the collector of the port of Manila prior to the payment of the duties upon the said cargoes and stated to him that he had been informed by the consul-general at Hong-kong that no duties would be charged at Manila upon American products. No formal protest was filed by him against the payment of such duties and no objection was made to the collection of the duties except upon the ground that the cargoes were products of the United States; and there is no record of any protest whatever having been made except the word “ Protesta ” in the books kept by the assistant teller, in pencil, opposite to the entry for the duties on the flour.
    The first formal protest was made on June 20, 1899, when the attorneys for the claimants presented a claim to the Secretary of War for the return of the entire duties, upon the ground that they were American products.
    Y. The records of the United States custom-house at Manila, P. I., show that Po Guiyao, to whom the cargo was consigned, paid duties on the merchandise shipped by the claimants, in accordance with the schedules of the Spanish tariff, on the following dates and in the following manner:
    Pesos.
    Port charges___ 376. 65
    Taxes on consumption_ 837. 00
    6 per cent surtax_ 231. 01
    2 per cent unloading cargo_ 77. 00
    Import duty_ 3, 766. 50
    Total_ 5,288.16
    September 3, 1898, S. S. Taisang, shipment of oil:
    Pesos.
    Port charges_ 1, 701. 62
    Taxes on consumption_ 3, 781. 38
    6 per cent surtax_^_ 1, 043. 67
    2 per cent unloading cargo_ 347. 89
    Import duty_17,016. 21
    Total.
    23, 890. 77
    September 5, 1898, S. S. Taisang, shipment of flour:
    Pesos.
    Port charges_ 247. 60
    Taxes on consumption_ 550. 00
    G per cent surtax_ 369. 60
    2 per cent unloading cargo_!_ 123. 20
    Import duty_ 2,476. 00
    Total.
    3, 766. 40
    Total amount paid
    32. 945. 33
    
      VI. Under the original tariff schedule annexed to the Executive order of July 12, 1898, before the promulgation of said order, the following duties would have been chargeable on said cargoes if said order had been in force when collected:
    August 30, 1898, on cargo of steamship SunJciang (oil) :
    Pesos.
    2 per cent ad valorem_ 77. 00
    Import duty_ 3, 766. 00
    - 3.843.50
    September 3, 1898, on cargo of steamship Taising (oil) :
    Pesos.
    2 per cent ad valorem_ 347. 89
    Import duty_17, 016. 21
    - 17, 364.10
    September 5, 1898, on cargo of steamship Taising (flour) :
    Pesos.
    2 per cent ad valorem_ 123.20
    Import duty._ 2, 310. 00
    5,000 sacks at pfs., 0.02 each- 100. 00
    •- 2,533.20
    Total_ 23, 740. 80
    VII. Under the Executive order of July 12, 1898, and Customs Tariff and Regulations as proclaimed on November 10, 1898, the following duties would have been chargeable on said cargoes:
    August 30, 1898, on cargo of S. S. SunJciang (oil) :
    Pesos.
    Port charges_ 376. 65
    Taxes on consumption_ 837. 00
    6 per cent surtax- 231. 01
    2 per cent unloading cargo- 77. 00
    Import duty_ 3, 766. 00
    - 5,288.16
    September 3, 1898, on cargo of S. S. Taisang (oil) :
    Pesos.
    Port charges_ 1, 701. 62
    Taxes on consumption- 3, 781. 38
    6 per cent surtax_ 1, 043. 67
    2 per cent unloading cargo- 347. 89
    Import duty_17, 016. 21
    - 23, 890. 77
    September 5, 1898, on cargo of S. S. Taisang (flour) :
    Pesos.
    Import duty- A 410. 00
    Consumption tax, 50 cents per 100 kilos- 550. 00
    8 per cent on official value, pfs. 6,160- 492. 80 .
    10 per cent import- 241. 00
    - 3,693.80
    32. 872. 73
    
      YIII. The exchange value of the peso in United States currency at the time of the payments of said duties was $0.4725.
    IX. The duties charged on the cargoes under the Spanish tariff, as aforesaid, exceed those chargeable under the original tariff schedule attached to the- Executive order of July 12, 1898, in the sum of 9,204.53 pesos, equal to $4,349.14 in the currency of the United States.
    X. The duties charged on the cargoes under the Spanish tariff, as aforesaid, exceeded those chargeable under the tariff schedule attached to the Executive order of July 12, 1898, as proclaimed November 10, 1898, in the sum of 72.60 pesos, equal to $34.30 in the currency of the United States.
    
      Mr. ~Wm. E. Richardson for the claimants. Messrs. Ral-ston c& Siddons were on the brief:
    It is true that, as appears from the evidence in this case, the Presidential tariff was not made known to the military authorities in Manila until after the payments had been made by Ho Tung & Co., but this fact is legally immaterial.
    Unless otherwise specified, laws take effect from the date of their passage, and quite irrespective of their publication. Without now citing in detail cases in point to this broad and well-understood proposition, we content ourselves with those collated under the title “ Statutes ” in 23 Enc. of Law (first edition), page 213.
    Although the Secretary of War, in promulgating the Presidential proclamation, directed that “ upon the occupation of any ports or places in the Philippine Islands by the forces of the United States, the foregoing order will be proclaimed and enforced,” yet this direction by a subordinate officer could have no effect as a limitation upon the broad language of the Presidential proclamation, fixing the time when the tariff should become operative; nor was publication of the proclamation at all essential to the validity of the Presidential order.
    A case directly in point is that of Lapeyre v. United States (17 Wall., 191). The law of this case was subsequently reaffirmed in the case of Norton v. United States (97 U. S., 164). In the case of State v. Glide (2 Ala., 27), although the act provided for the publication of statutes in certain newspapers, this provision was treated as entirely directory, and a disregard of duty by the Secretary of State in securing publication it was said “ can not defeat the legislative will,” and the act was held operative immediately on passage.
    Somewhat similar decisions are to be found in the cases of Parkinson v. State,(14 Md., 184), State ex rel. v. Loan (7 Wise., 285), Weathersford, Admr., v. Weathersford (8 Port. Ala., 17), Heard v. Heard (8 Ga., 380), Matthews v. Zane (7 Wheaton, 211).
    A notable and often cited case is that of Brig Ann (1 Gallison).
    On the part of the Government we may assume that it will be contended either, first, that the proclamation, by virtue of which the duties in dispute were taken, was a revenue law of the United States, and as such the Court of Claims has no jurisdiction over the matter; or, second, that the payment of the moneys involves no implied assumpsit, and, therefore, again, that the Court of Claims has no jurisdiction.
    Were the duties paid under a revenue law? We submit that they were not. Revenue laws are passed by Congress, the' only power having authority by the Constitution to legislate with regard to such matters. The proclamation was the act of the Executive. The duties collected at Manila were collected as a “ military contribution,” and only by virtue of the war power (something entirely disconnected from the orderly administration of revenue matters) could the President have issued his proclamation. Revenue laws operate equally, but a military contribution may be made to operate with the utmost inequality as to persons, places, and subjects of taxation.
    In the case of Nicholls v. United States (7 Wall., p. 122), it was stated that “ cases arising under the revenue laws are not within the jurisdiction of the Court of Claims,” and what is meant by the term “ revenue law ” is shown by reference to United States v. Hill (123 U. S., 681).
    This suit is not brought by virtue of any revenue law of the United States.
    
      But is the case one of an implied assumpsit, and therefore within this court’s jurisdiction? At the time the goods were shipped from Hongkong Ho Tung & Co. were legally entitled to believe (although their personal knowledge upon the subject was immaterial) that any goods shipped from Hongkong .would be entered at Manila on the payment of the duties prescribed by the Presidential tariff. More than this amount was taken from them. If they had not surrendered the excess their goods would have been subject to seizure, or at least they would have been compelled to reship them to Hongkong. They were not upon an even footing with the officers of the United States, and such being the case, they submitted themselves to the superior power, and if that power demanded an excessive exaction, they are entitled, as upon an implied assumpsit, to the return of the excess.
    Cases involving this principle are numerous among the reports of the Court of Claims and of the Supreme Court of the United States. (See Horton v. U. /S'., 11 Ct. Cls. B., 672.)' In United States v. Moseby (133 U. S., 273) it was held that public officials have the right to pay money to the Government and thereafter bring suit to recover.
    In Swift et al. v. United States (111 U. S., 122) all the authorities are reviewed and the conclusion reached that payments of exactions made colore officii are not voluntary so as to preclude a party from recovering. This opinion was reviewed and affirmed in United States v. Wilson (168 U. S., 275).
    The evidence shows that all the payments were made under objection, and that as to at least one payment the word “ pro-testa ” is written opposite the custom-house entry, but it would not have been material had there been no evidence whatever of any protest. Protest was not required by law as in case of payments made through a custom-house. At the time in question the Philippine Islands were not under the jurisdiction of the United States, .but simply under American control, pending their final disposition by the terms of a prospective treaty of peace.
    In Adams v. The United States (1 Ct. Cls. E.., 306) it was held that a protest would have been unavailing (as was the case in the present instance), and that, therefore, the law did not require it, and a tax illegally exacted could be recovered without it. And in Healey v. The United States it was held that as in that instance there was no statute requiring protest, plaintiff was not obliged to do so.
    
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney-General Van Orsdel) for the defendants.
   Barney, J.,

delivered the opinion of the court:

The claimants were copartners and subjects of Great Britain, doing business at Hongkong, China, and as such copartners, in the month of August, 1898, shipped certain merchandise from Hongkong to Manila, in, the Philippine Islands, and upon the arrival of said shipments at Manila Avere required to pay to the United States military authorities at that place the duties upon said merchandise prescribed by the Spanish tariff, the same having been continued in force by order of the officer in command of our military forces at that place theretofore promulgated. The port of Manila came into possession of our military forces on the 13th day of August, 1898, and the order last mentioned was issued on the 19th folloAving.

On the 13th day of July, 1898, the following military order Avas issued at Washington by the Secretary of War:

“ WaR DEPARTMENT,

“ Washington, July IS, 1898.

“ The following order of the President is published for the information and guidance of all concerned:

“ ‘ Executive Mansion, July IB, 1898.

“ ‘ By virtue of the authority vested in me as Commander in Chief of the Army and Navy of the United States of America, I do hereby order and direct that, upon the occupation and possession of any ports and places in the Philippine Islands by the forces of the United States the following tariff of duties and taxes, to be levied and collected as a military contribution, and regulations for the administration thereof, shall take effect and be in force in the ports and places so occupied.

“ ‘ Questions arising under said tariff and regulations shall be decided by the general in command of the United States forces in those islands.

“‘ Necessary and authorized expenses for the administration of said tariff and regulations shall be paid from the collections thereunder.

“ ‘Accurate accounts of collections and expenditures shall be kept and rendered to the Secretary of War.

“ ‘ William McKiNley.’

“ Upon the occupation of any ports or places in the Philippine Islands by the forces of the United States the foregoing-order will be proclaimed and enforced.

“ E. A.. AlgeR,

“Secretary of War.”

It is conceded by both parties that this order and the schedule of rates therein referred to did not reach Manila until some time after the 1st of September following, and after the arrival of the claimants’ merchandise at that port and the payment of the Spanish duty thereon as stated. It appears, however, that news had reached that place that some order of' the kind had been issued by the President, but its exact contents or the schedule mentioned were unknown. The claimants appear to have contended that their merchandise, being an American product, ivas not liable to the payment of any duty whatever, and protested against the payment of any duty on that ground, and made no other protest.

This action is brought to recover from the defendant the difference between the amount of the Spanish tariff so paid and the amount if levied according to the order of the President, the same in our exchange being $4,330.72.

The claimants in their petition ask judgment for $32,-945.33, the whole amount of duty paid upon the claim, for the reason already stated that no duty whatever could be exacted; but that contention seems to have been'abandoned.

It will thus be seen that the difference in the tax as collected and paid was paid under the mutual mistake of the parties; that is to say, both parties at the time of payment supposed the Spanish tariff to be in force, and had no knowledge of the schedule as provided by the order of July 12, 1898. This being the case, the question of protest would seem to be eliminated from our consideration, as the Supreme Court appears to have decided that under such circumstances no protest is necessary (Lapeyre v. United States, 17 Wallace, 191; Norton v. United States, 97 U. S., 164). But as this case is decided upon another point, that question is not considered and is not herein decided. We shall assume, however, in the decision of this case, either that such protest was made or was unnecessary.

The question, then, for us to determine is, When did the order of the President of July 12, 1898, go into effect at Manila — on the day of its date or when it was received and put in force at that place? The answer to this question is somewhat embarrassing, for the reason that no authorities directly bearing upon the subject have been cited to this court by the counsel on either side, and we do not know that any such can be found; certainly in the limited time given for its consideration here no such authority has been found.

Acts of Parliament take effect from the time that they receive the royal assent, and by relation from the earliest moment of the day on which it is given (Tomlinson v. Bullock, 42 B. Div., 230) ; and this rule has been applied in this country, unless otherwise provided in the act itself or bjr some other law. (Arnold v. United States, 9 Cranch, 104; Matthews v. Zane, 7 Wheat., 164; Wellman’s case, 20 Vt., 653.)

It is contended by the claimant that the same rule should apply to military orders of the President, and the case of Lapeyre v. United States (17 Wall., 191) is cited as sustaining that contention. It was there decided that a proclamation of the President declaring certain ports, theretofore closed to foreign commerce by the proclamation of a former President made pursuant to act of Congress, to be open to foreign commerce took effect when it was signed by the President and sealed with the seal of the United States officially attested. It ma}^ be well, hoAvever, to note here that that case was an appeal from this court, but that both courts were divided upon this question. Owing to the illness of one of the judges this court was equally divided. The history of the case in that respect is told in the reporters’ statement of the case in this court:

“ This case has singularly divided two courts. In the court below a reargument was ordered on the principal question whether a proclamation of the Executive takes effect from the day of its date or the time of its promulgation; and the court then stood equally divided, one judge being prevented by illness from taking part in the decision. For the purposes of an appeal, judgment was entered dismissing the petition, and an appeal was taken. In the Supreme Court a reargument was also ordered on the same point, and the court then stood five for reversal and four for affirmance, with one of the majority merely concurring in the conclusion that the judgment should be reversed.” (Le Peyre v. United States, 8 C. Cls. R., 165, 166.)

The case at bar is distinguishable from that case in at least two important respects: (1) That was the proclamation of the President by virtue of an act of Congress; (2) This was a military order of the President, as Commander in Chief of the Army and Navy of the United States, to be enforced in a foreign country under our' military control.

That every citizen is presumed to know the laws of his own country, or the country in which he transacts business, and is bound at his peril to obey them, is elementary; and it follows as a corollary to this rule that he is presumed to have knowledge of all such laws from the day they take effect. When we take into consideration the fact that the greatest judges and best lawyers are ignorant of a large percentage of the laws, this rule seems to be a harsh one, and it often does work great injustice. It is a law of necessity, however, and a little thought shows that no other rule would be safe. The antithesis of this rule is also equally well established, that ignorance of a law of a foreign country is merely ignorance of a fact which no one can conclusively be presumed to know; and, when necessary, foreign laws are put in issue in pleadings and proven the same as any other fact.

In the leading case of Cross v. Harrison (16 How., 180) one of the questions involved was the right of the plaintiffs to recover customs duties paid by them at the port of San Francisco during the time from the date of the treaty of Hidalgo and the time when official notice of the treaty was received in California, a period of about two months. During the Mexican war San Francisco was seized and taken possession of by our military forces, and customs duties were levied and collected by them in the exercise of belligerent rights; and the rate of duty thus prescribed was collected until notice of the treaty of peace and the cession to us of California was received, whereupon this war tariff was abandoned and duties were afterwards levied in conformity with the tariff laws applicable to other ports of the United States.

That action was brought to recover all of the duties paid by the plaintiffs between February 3, 1848, the date of the treaty of peace, and November 13, 1849, the date the collector at San Francisco entered on the duties of his office; but in the decision of the case the court distinguishes' the duties paid after the treaty of peace and the cession to us of California, but before notice of this fact had reached the military authorities there, and the duties paid after such notice. It appears, inferentially at least, that the rate of duties collected under the war tariff was different from the rate under our general tariff laws then in force. (Id., 189.)

The court, in considering- the duties paid during that period, decided that they were properly collected at the rate and in pursuance of the war tariff until notice of the ratification of the treaty of Hidalgo had been received in California.

In Burke v. Miltenberger (19 Wall., 519) one of the questions involved was whether a military order issued May 17, 1865, by General Banks, then commanding the Headquarters of the Gulf, operated as an injunction upon the proceedings of the marshal who had made a sale pursuant to a judgment rendered in a provisional court then existing in the State of Louisiana during the civil war, it' appearing that said order was never brought to the notice of either of the courts of Louisiana engaged in the decision of the case.

The court decided this order, under the circumstances, 'to have no force in the courts, and said: “ It may be that the courts of the country would take judicial notice that Louisiana at the time mentioned was in the military occupation of our forces under General Banks, but we know of no rule of law or practice requiring this of any other court to take notice of the various orders issued by a military commander in the exercise of the authority conferred upon him.” (Id., 526.)

It is unquestioned that upon the occupation by our military forces of the port of Manila it was their duty to respect and assist in enforcing the municipal laws then in force there until the same might be changed by order of the military commander, called for by the necessities of - war. (Hall’s International Law, 4th ed., sec. 155; Taylor’s International Law, secs. 576, 578.)

The commander of'our forces had the right to take possession of the machinery for the collection of the revenues within the occupied district, and to make such collections. (Hall’s International Law, sec. 158; Taylor’s International Law, sec. 531.) It was therefore well within the authority of General Merritt to make the order he did, continuing the Spanish tariff in force at that port until the same might be changed by higher military authority.

While our occupation of Manila became permanent by subsequent treaty, our possession at the time of the collection of these duties was temporary only, and in point of law was no different from the usual military occupation of belligerent territory. It was foreign territory in our temporary possession, and during such possession we were exercising there the restricted rights of a belligerent. If the President, as Commander in Chief of the Army and Navy, had issued an order here in Washington which had affected the personal conduct of Spanish subjects in Manila, we do not think it could be reasonably contended that those subjects would be presumed to have knowledge of the contents of such order before it had been received and promulgated there. In other words, such an order would not be in force at Manila till it had been received and made known there. If this position is right, it would seem to follow that our military forces there would act in the enforcement of belligerent rights, under the orders of the officer in immediate command until such time as actual notice of different orders had been received from some superior officer.

For all practical purposes it was foreign territory, and oxir military forces there were governing under the rules of international law, and in a sense legislating under such rules until receiving notice of different legislation by a superior power. It was a government de facto, military in character, and subject only to higher military authority actually put in force.

Taking this view of the case, we do not believe that any order of the President providing a tariff schedule for the Philippine Islands would have the effect of modifying any existing tariff regulations there until actually received and promulgated.

Hence, it is the judgment of the court that the petition be dismissed.  