
    NARCISO BASSO v. THE UNITED STATES.
    [No. 23186.
    Decided February 6, 1905.]
    
      On the Proofs.
    
    The claimant is a native and citizen of Porto Rico. In July, 1S99, he is arraigned before the provisional court under the military department of Porto Rico upon a charge of smuggling goods from the United States. He enters a 'plea setting forth that the statutes prohibiting smuggling into the United States were without force and effect in Porto Rico. The court overrules the plea and imposes a fine of $1,500, which the claimant pays under arrest. Subsequently the Supreme Court decides that goods imported from the United States at that time were not dutiable. The claimant sues to recover back the money as paid under duress.
    I.A citizen of Porto Rico is not an alien to the United States and is not prohibited by the Revised Statutes (§ 1068) from maintaining .an action in this court.
    II.An order of the War Department establishing a provisional court in Porto Rico in 1899 could not create new offenses, but could recognize and punish such as were defined by statute; and the statutes were to be applied as interpreted by the court of last resort in the United States.
    III.Where a fine was imposed by a court in Porto Rico for smuggling goods from the United States at a time when, under a decision of the Supreme Court, they were entitled to free entry, the court was without jurisdiction and the judgment void.
    IY. Where there is a total want of jurisdiction the proceedings are void, and may be rejected when collaterally drawn in question.
    V.No greater right exists to collect a penalty for the nonpayment of a customs duty than for the payment of the duty itself; and an action will lie to recover back the money if paid under the compulsion of a judgment which was void.
    VI.An action to recover back money illegally exacted under compulsion is not an action sounding in tort, and of it the court may entertain jurisdiction.
    VII.The cases reviewed where an action will lie against the United States to. recover back money e® ccquo et bono.
    
    
      
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant above named, Narciso Basso, is a native inhabitant of the island of Porto Rico, and at all the times referred to in the petition resided and now resides in the town of Humacao, in said island.
    II. On the 10th day of December, 1898, a treaty of peace between the United States of America and the Kingdom of Spain was concluded and signed by their respective plenipotentiaries at Paris, in the French Republic. Said treaty was ratified by the Senate and by the President of the United States on the 6th day of February, 1899, and by Pier Majesty the Queen Regent of Spain on the ,19th day of March, 1899, and ratifications thereof were exchanged in the city of Washington, in the District of Columbia, on the 11th day of April, 1899, and on the same day the said treaty was proclaimed b}^ the President of the United States.
    III. The said island of Porto Rico was occupied by the military forces of the United States prior to the 1st day of January, 1899, and on the 1st day of February, 1899, the President of the United States, by a certain Executive order, promulgated the “Amended customs tariff and regulations for ports in Porto Rico,” as a tariff fixing and providing .for the collection of duties upon all articles imported into Porto Rico, and thereafter duties were collected under and pursuant to said “Amended customs tariff and regulations,” and the amendments thereof made from time to time by order of the President until the 1st day of May, 1900.
    IY. During the said period from the 1st of February, 1899, to the 1st day of May, 1900, certain officers of the Army of the United States were designated to act, and did act, as collectors of customs at the several ports of enüy in Porto Rico, and enforced the said, “ amended customs tariff and regulations ” at all times during said period upon articles of merchandise imported into Porto Rico from the United States, as well as upon similar articles imported into Porto Rico from foreign countries.
    Y. During the months of Juty and August, 1899, George W. Davis, brigadier-general of volunteers, pursuant to orders duly issued by his military superiors, was in command of the Department of Porto Rico, and on the 27th day of June, 1899, he issued and promulgated a general order, known as “ General Orders, No. 88,” whereby he established a provisional court for the Department of Porto Rico. In and by the said order it was provided, among other things, that the judicial power of said provisional court should extend to all cases which would be property cognizable by the circuit or district courts of the United States under the Constitution and to all common-law offenses within the restrictions thereinafter specified; that the decisions of said court should follow the principles of common law and equity as established by the courts of the United States, and its procedure, rules, and records should conform as nearty as practicable to those observed and kept in said Federal courts; that said court should consist of three judges, one United States district attorney, one marshal, one clerk, three deputy clerks, one stenographer and reporter, one interpreter, one bailiff, one janitor, and one messenger; that the law judge should preside and determine and decide all technical questions of law, and that a majority vote of the bench should determine all questions of fact, and that the jury system might be introduced or dispensed with in any particular case in the discretion of the court, and that the judges of the provisional court should be clothed with the powers vested in the judges of circuit or district courts of the Uiiited States, and that the district attorney should be authorized to present to the court information against all parties for violations of the United States statutes and regulations. With relation to the criminal jurisdiction of said court it was further ordered in said order as follows:
    “ In order to define more closely certain branches of the criminal jurisdiction of the provisional court, it is hereby provided that it shall include and be exclusive in the following classes of cases:
    “ First. All offenses punishable under the statutory laws of the United States such as those indicated in paragraph I of this order.” '
    
      The provisions iii said order relative to appeals and writs of error are as follows:
    “ If any party litigant shall feel aggrieved by the judgment or decree of said court, a stay of ninety days shall be granted to such party before the execution of such judgment or decree, upon the filing of a bond by him, with sureties in an amount and with such conditions as the court may determine, for the purpose of allowing such party to make application to the Supreme Court of the United States for a writ of certiorari or other suitable process to review such judgment or decree. But if, at the end of said ninety clays, such process has not been issued by the Supreme Court, execution shall forthwith issue.”
    And it is further provided in said order as follows:
    “ The department commander will exercise the power of pardon, commutation, or mitigation of punishment in criminal cases.
    “All fees, fines, and costs paid to the clerk of the provisional court shall be turned over by him at the end of each calendar month to the treasurer of the island, with a statement of the sources from which they are received.”
    Under the said order the following appointments were announced, which took effect July 1, 1899:
    “ To be law judge, Noah Brooks Kent Pettingill.
    “ To be provisional United States attorney, J. Marbourg Needy.
    “ The following officers are hereby detailed on the special duty set opposite their respective names:
    “ Maj. Eugene D. Dimmick, Fifth United States Cavalry; Maj. Earl D. Thomas, Fifth United States Cavalry; associate judges of the United States provisional court.
    “ First Lieut. Robert- Alexander, Eleventh United States Infantry, clerk of the United States provisional court.
    “ Private Samuel C. Bothwell, Troop D, Fifth United States Cavalry, is detailed on special duty as marshal of the United States provisional court.
    “ The necessary deputies will be detailed in subsequent orders.
    “ The officers named will proceed to San Juan and report to the adjutant-general of the department.
    “ The travel enjoined is necessary for the public service.”
    The provisional court, as stated by said General Orders, No. 88, was organized as thereby provided.
    
      VI. On the 13th day of July, 1899, an information was filed by the said attorney for the provisional court, charging the claimant with the crime of having smuggled certain articles, to wit, certain scissors, from the United States into the port of Humacao, P. R., on the 29th day of April, 1899, on the schooner Jennie A. Stubbs: with having failed to make the entry of the same in the custom-house at Humacao, P. R., and of having illegally imported into the island of Porto Rico from the United States said goods without having-paid the duty thereon, in violation of sections 2865 and 3082 of the Revised Statutes of the United States. The claimant was arraigned in said provisional court on said charge on the 14th day of July, 1899, when he entered an appearance by counsel and pleaded not guilty. Trial was then set down for July 18,1899, on which day claimant appeared by counsel and testified as a witness in his own behalf, and by said counsel entered a plea that said sections 2865 and 3082 of the Revised Statutes of the United States were without force and effect in Porto Rico on said date, to wit, the 29th day of April, 1899. The said defenses were not allowed, and the court thereupon found the claimant guilty and fined him fifteen hundred dollars ($1,500) lawful money of the United States, and also sentenced him to be confined to the “ Cárcel real ” for the period of one month. The said scissors were of domestic manufacture.
    VII. The said “ Cárcel real ” was at the time in question used as the jail in which prisoners sentenced by said provisional court were confined.
    VIII. On the 19th day of July, 1899, the claimant paid to said Robert Alexander, clerk of said provisional court, the sum of fifteen hundred dollars ($1,500) lawful money of the United States, the amount of said fine so imposed on him.
    IX. Said payment of said fine was made under compulsion.
    X. The amount of said fine shortly after its receipt was paid over by said clerk of said court to the treasurer of the island of Porto Rico, in conformity with the requirements of said General Orders, No. 88.
    XI. At the date of said payment to said treasurer, he, the said treasurer, was an officer of the United States Army, detailed, to act as treasurer of the island of Porto Rico by-orders of his military superiors.
    
      Mr. Henry M. Ward for the claimant:
    1. While it must be conceded that the jurisdiction of this court over this suit is not necessarily dependent upon claimant being a citizen, yet if he is a citizen there can not be any question as to jurisdiction.
    This question, Ave believe, has not yet been decided by any court. It is not only a novel question, but a question of the greatest importance to the people of the island. The nearest approach to a decision upon this point is to be found in the opinion of the Supreme Court of the United States in the case of Gonzalez v. Williams (192 U. S., 1). In that case an indigent native Porto Rican woman was held by the Commissioner of Immigration as an “ alien immigrant ” likely to become a public charge, under the act of March 3, 1891 (26 Stat., 1084). Upon habeas eorpus the Circuit Court for the Southern District of New York held that she was not a citizen (118 Fed., 941), and therefore an alien. The Circuit Court says, at page 942: “ This legislation [Foraker Act] has certainly not operated to effect a naturalization of the petitioner as a citizen of the United States. Being foreign born and not naturalized, she remains an alien and subject to the provisions of law regulating the admission of aliens who come to the United States.” The Supreme Court, in a carefully considered opinion by the Chief Justice, declared that the case did not require a decision whether or not the petitioner was a citizen, but that “ the question is the narrow one whether Gonzalez was an alien within the meaning of that term as used in the act of 1891 ” (192 U. S., 12). The court decided that she was not an alien, and therefore reversed the order, with a direction to discharge the petitioner.
    We have, therefore, to start with, a conclusive adjudication that native inhabitants of Porto Rico are not aliens. We insist that the necessary consequence of this decision is that they are citizens. The learned Attorney-General has ruled that they are “Americans.” (24 Op. Attys. Gen., 40, cited in the Gonzalez ease, p. 14.) They clearly owe allegiance to the United States. The phrase “ citizen of Porto Rico ” means no more than inhabitant of Porto Rico. The legal entity known as the people of Porto Rico has not the attributes of sovereignty. It is but an incorporation of the inhabitants in order that there may be- a legal entity with the usual attributes of a corporation — the right to sue and be sued, to have a name and seal, to have succession, to make contracts by its duly authorized agents; but, while the inhabitants of Porto Rico are members of this body politic, their allegiance -is clue to the United States, which, and not the body politic, is their sovereign.
    We may concede that United States citizenship can be acquired- only by birth or by naturalization. But naturalization can be granted either by act of Congress or by treaty. We contend that the effect of the treaty was to make native inhabitants of the island citizens, and if not’ that this was effected by the Foraker Act.
    In other words, that the terms “ alien ” and “ citizen ” are absolutely inclusive, and that every human being must be either one or the other; that there is no such thing as a man without a country, as is urged by the Attorney-General. This was clear ty the rule at common law (see cases and argument in brief of Mr. Coudert in the Gonzalez ectse, 192 U. S., at 2), and there has not been any act of Congress altering the common-law rule.
    Citizenship has no necessary connection with political rights. Nearly half of all the citizens of the United States— women in most of the States — have not even the elective franchise. The residents of the District of Columbia are undoubtedly citizens of the United States, yet they do not vote. It is not a question of political rights, but of allegiance. “ Citizen,” under the common law, is synonymous with “ subject,” except that the latter term is usually applied to those whose allegiance is due to a monarch, who live under _ 'the monarchical form of government; the former to the members of a republic. The common law knew only “ subjects ” and “ aliens.”
    2. The Attorney-General assumes that only citizens and aliens who come within section 1068 can sue in this court. This assumption is not supported by the language of any act of Congress. On the contrary, every human being could sue the United States in a proper case in the Court of Claims were it not for the implication in section 1068, Revised Statutes, that aliens, subjects of powers which do not accord the right of suit to citizens of the United States, can not- sue.
    This section has a curious history. It was originally a proviso to section 2 of the act of July 27, 1868 (15 Stat. L., 243). This section ivas enacted that no action should be maintained against the United States “ in the name or in the behalf or interest of any alien ” under the “ captured and abandoned property act,” “ provided that this section shall not be construed so as to deprive aliens who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts of the privilege of prosecuting claims against the United States as now provided by law.”
    It has been held by this court that before the passage of this act of 1868 aliens could sue the United States in this court just as they could sue citizens in the courts of law. (Mente v. Ü. 3., 4 C. Cls. R., 471; Scharfer v. U. 3., 4 C. Cls. R., 529; Wagner,v. ü. S., 5 C. Cls. R., 637; Bulwinlde v. V. 3., 4 C. Cls. R., 395.)
    It was clearly so understood by Congress, as the section took away from aliens a privilege which they already enjoyed, but reserved the privilege to aliens of a certain class. It was not an enabling act, allowing aliens to sue where they could not before, but a limiting act, taking away the rights of aliens, except as stated in the proviso.
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    First. No suit can be maintained against the United States in this court without a claimant.
    Second. No person can be a claimant in this court unless he is a citizen or an inhabitant of the United States, or unless he is a citizen or a subject of a foreign government “ which accords to citizens of the United States the right to prosecute claims against such government in its courts.” (Rev. Stat., sec. 1068.)
    Third. The claimant is not now and never was a citizen or an inhabitant of the United States; nor is he a citizen or a subject of any foreign government, within the meaning of section 1008, supra. His “ civil rights and political status ” were those of a man without a country since the treaty of Paris, and until Congress passed the act of April 12, 1900 (chap. 191, 31 Stat. L., 77), commonly called the Foraker Act, which made him a part of the then created body politic named “ The People of Porto Rico,” and a citizen of that political corporation, and extend to it such statutory laws of the United States as might not be considered not locally inapplicable. . We do not see how that act could be construed as conferring upon him the privilege of suing the United States in this court.
    Porto Rico is not a part of the United States; it is conquered, ceded territory, and has ceased to be “ foreign country,” within the meaning of our tariff statutes; and until Congress saw fit to construct a quasi-civil government for it, it was lawfully governed and taxed by the President under his military powers. (De Lima v. Bidwell, 182 U. S., 1; Dooley v. United States, ib., 222; Armstrong v. United States, ib., 243; Downs v. Bidwell, ib., 244.)
    We here respecfully call the attention of the court to the fact that the question of jurisdiction now presented in this suit was not raised, discussed, nor passed upon in Dooley v. United States or any of the other insular cases decided by the Supreme Court.
    In addition, we submit that the decision in the Dooley case does not govern in the present suit, because the “ fine ” was imposed by lawful authority, and the Foraker Act, section 3, itself recognized the military rule of taxation by continuing the levy of tariffs on merchandise imported into the island of Porto Rico from the United States and into the United States from Porto Rico until March 1, 1902.
    Fourth. As the fine sued for was lawfully imposed and paid, the present claim is not such a “ subject-matter ” or of “ such character ” as this court can take jurisdiction, because it is not founded upon the Constitution of the United ■ States, nor upon any law of Congress, nor upon any regulation of an Executive Department, nor upon any contract, express or implied.
   Weight, J.,

delivered the opinion of the,court:

During the war with Spain and before April 11, 1899, the date of the exchange of ratifications of the treaty of peace, the island of Porto Rico was occupied bjr the military authorities of the United States, and among other regulations for the government of the island during said military occupation the War Department prescribed the collection of duties on all articles imported into Porto Rico. Officers of the Army were designated to act and did act as collectors of customs of the several ports and enforced the collections of such customs tariff.

On the 27th day of June, 1899, by authority of the War Department, a provisional court for the Department of Porto Rico was established, upon which judicial power was conferred extending to all cases which would be properly cognizable by the Circuit or District Courts of the United States under the Constitution and all common law offenses within certain restrictions; that the decisions of said court should follow the principles of common law and equity as established by the courts of the United States and its procedure, rules, and records should conform as nearly as practicable to those observed and kept in Federal courts; that the j udges of the provisional court be vested with the powers of judges of Circuit or District Courts of the United States; a district attorney should be appointed authorized to present to the court informations against all parties for violations of United States statutes and regulations. With relation to the criminal jurisdiction of the provisional court it was specially ordered that it include all offenses punishable under the statutory laws of the United States.

An information was filed in the provisional court July 13, 1899, against the plaintiff, charging him with the misdemeanor of having smuggled scissors from the United States into the port of Humacao, Porto Rico, on the 29th day of April, 1899, on the schooner Stubbs, with having failed to make entry of the same in the custom-house at said port, and with having illegally imported into Porto Rico from the United States the said goods without having paid the duty thereon, in violation of sections 28G5 and 3082 of the Revised Statutes of the United States. The plaintiff was arraigned in said provisional court upon the information filed against him, and pleaded not guilty, and as 'a defense insisted that the said sections of the Revised Statutes of the United States were without force or effect in Porto Rico on the 29th day of April, 1899. But the court overruled the defense, and adjudged plaintiff guilty of a violation of the statute and gave judgment against him for a fine of $1,500 and imprisonment for one month. The fine was paid and the imprisonment endured.

The plaintiff is a native inhabitant of Porto Rico, and at all times referred to in his petition herein resided and now resides in the town of Humacao, in said island. He brings this suit to recover back the penalty imposed upon him for the alleged violation of the statute referred to.

The chief defense of the Government against a right to recover, urged upon our attention, is the incapacity of the plaintiff to maintain the suit in this court. Plaintiff is a citizen of Porto Rico. He is not an alien to the United States. (Gonzales, 192 U. S., 1.) We discover no prohibition contained in section 1068 of the Revised Statutes to his right to maintain this suit. No other statute has been cited to us, and we know of none to deny to plaintiff such right. We think his right to sue in this court is clear.

The War Department b}^ its order or regulation gave to the provisional court of Porto Rico as the limit of its criminal jurisdiction the statutes of the United States. The court could not itself create new offenses, but could recognize and punish only such as had been defined and declared by the statutes. In giving the court the statutes for its guide relative to criminal jurisdiction, it will be presumed the War Department intended the statutes to be accepted and applied as interpreted by the court of final resort in the United States, so that the statutes could not mean one thing here and something else in Porto Rico. In Dooley v. United States (182 U. S., 235) the court said:

“ Without questioning at all the original validity' of the order imposing duties upon goods imported into Porto Rico from foreign countries, we think the proper construction of that order is that it ceased to apply to goods imported from the United States from the moment the United States ceased to be a foreign country with respect to Porto Rico, and that, until Congress otherwise constitutionally directed, such merchandise was entitled to free entry.”

The case then frees itself to the single point that at the time of the alleged violation of the statute in question, April 29, 1899, the scissors which plaintiff was charged with smuggling were entitled to free entry, and the regulation of the War Department in respect to the collection of customs tariff did not apply to such merchandise. At the time of the alleged offense and at the time of plaintiff’s conviction there was in fact no criminal offense of the kind with which plaintiff was charged and convicted. The statutes limiting and defining the criminal jurisdiction of the provisional court did not extend to or create the offense with which plaintiff was charged and convicted, and for which a penalty was imposed upon him for the ommission to do that which he was not obligated to do either by the statute referred to in the complaint or by the regulation of the War Department. The subject-matter of its judgment never having been confided to it, the court was without jurisdiction, and its judgment was void. The jurisdiction of a court can never depend upon its own decision upon the merits of a case brought before it, but upon its right to hear and decide it at all. (Ex parte Watkins, 7 Pet., 568.) If there is a total want of jurisdiction the proceedings are void and afford no justification, and may be rejected when collaterally drawn in question. (Thompson v. Tolmie, 2 Pet., 157; Rose v. Himely, 4 Cranch, 241; Griffith v. Frazier, 8 Cranch, 9.) Although a court may have jurisdiction over the parties and subject-matter, yet if it make a decree which is not within the powers granted to it by the law of its organization, its decree is void. (United States v. Walker, 109 U. S., 258.) Where a court is without jurisdiction it can not make any order in the cause, except to dismiss the suit, but may set aside orders made before the want of jurisdiction was discovered. (New Orleans and B. S. Mail Co. v. Fernandez, 12 Wall., 130.) Courts of the United States have no jurisdiction over offenses not made punishable by the Constitution, laws, or treaties of the United States (148 U. S., 197) and the Criminal jurisdiction of their courts is wholly derived from statutes of the United States. (Manchester v. Mass., 139 U. S., 240.)

Treating the judgment of the provisional court as void, as it must be, the fact results that the penalty of $1,500 exacted ivas without legal warrant. No greater right existed to demand a penalty for the nonpayment of a customs duty than for the payment of the duty itself. There was no authority of law to demand the one or the other. The defendant received and still retains it. Is there any reason it should not be refunded to plaintiff ? There is none in legal contemplation nor in good morals. In Wisconsin Central Railroad v. United States (164 U S., 212) the court said:

“ Reference was made to Barnes v. District of Columbia (22 C. Cls. R., 366, 394), wherein it ivas ruled, Richardson, C. J., delivering the opinion, that ‘ The doctrine that money paid can be recovered back when paid in mistake of fact and not of law does not have so general application to public officers using the funds of the people as to individuals dealing with their own money where nobody but themselves suffer for their ignorance, carelessness, or indiscretion, because in the former case the elements of agency and the authority and duty of officers and their obligations to the public, of which all persons dealing with them are bound to take notice, are always involved.’ We concur in these views, and are of opinion that there is nothing on this record to take the case out of the scope of the principle that parties receiving moneys illegally paid by a public officer are liable ex aequo et bono to refund them.”

These principles are as forceful in the present case of moneys illegally exacted by public officers as when illegalty paid by them, to which they have been applied in the case cited.

In United States v. State Bank (96 U. S., 35) the court said:

“A party who without right and with guilty knowledge obtains money, of the United States from a disbursing officer, becomes indebted to the United States, and they may recover the amount. An action will lie whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obliged by natural justice and equity to refund. ■ The form of the indebtedness or the mode in which, it was incurred is immaterial. (Bayne v. United States, 93 U. S., 642.) * * *
“ But surely it ought to require neither argument nor authority to support the proposition that, where the money or property of an innocent person has gone into the coffers of the nation by means of a fraud to which its agent was a party, such money or property can not be held by the United States against the claim of the wronged and injured party.”

No implication should be indulged from the use of the quotations we have given that we believe any element of fraud entered into the acts of the members of the provisional court, for we have no doubt they were controlled by pure and honorable intentions, but the result of their unauthorized proceeding was as illegally destructive of the rights of plaintiff as in the case described in the quotations.

It ,is suggested this court has no jurisdiction of the cause because the action is for damages sounding in tort. This same point was before the court and received its judgment in the Dooley case (supra), in which it was said:

“ But whether the exactions of these duties were tortious or not; whether it was within the power of the importer to waive the tort and bring suit in the Court of Claims for money had and received, or upon an implied contract of the United States to refund the money in case it was illegally exacted, we think the case is one-within the first class of cases specified in the Tucker Act of claims founded upon a law of Congress, namely, a revenue law, in respect to which class of cases the jurisdiction of the Court of Claims, under the Tucker Act, has been repeatedly sustained.”

Whether the present case be regarded as founded upon a law of Congress or upon a regulation of an Executive Department is immaterial, as the result is the same in either case, for according to the decision in the Dooley case both classes are put upon the same footing with respect to tor-tious characteristics and the jurisdiction of the court established. In that case the court analyzed the jurisdiction of this court as conferred by the Tucker Act in this manner:

“ The first section evidently contemplates four distinct classes of cases: (1) Those founded upon the Constitution or any law of Congress, with an exception of pension cases; (2) cases founded upon a regulation of an Executive Department; (3) cases of contract, express or implied, with the Government; (4) actions for damages, liquidated or unliquidated, in cases not sounding in tort. The words ‘ not sounding in tort ’ are in terms referable only to the fourth class of cases.”

The present case is not for damages, liquidated or unliqui-dated, and the question of whether the exaction of the. penalty was tortious or not is not involved in the case.

It should not be the province of the court to hunt ■ for doubts of jurisdiction in a case like this, where all the demands of justice point to the right of plaintiff to be reimbursed the penalty unlawfully exacted. Judgment will be awarded against defendants for $1,500.  