Senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratification, or make such ratification conditional upon the adoption of amendments to the treaty. If, for instance, the treaty with Spain had contained a provision instating the inhabitants of the Philippines as citizens of the United States, the Senate might have refused to ratify it until this provision was stricken out. But it could not, in my opinion, ratify the treaty and then adopt a resolution declaring it not to be its intention to admit the inhabitants of the Philippine Islands to the privileges of citizenship of the United States. Such resolution would be inoperative as an amendment to the treaty, since it had not received the assent of the President or the Spanish commissioners.

"Allusion was made to this question in the New York Indians vs. United States, (170 U. S. 1, 21,) wherein it appeared that, when a treaty with certain Indian tribes was laid before the Senate for ratification, several articles were stricken out, several others amended, a new article added, and a proviso adopted that the treaty should have no force or effect whatever until the amendment had been submitted to the tribes, and they had given their free and voluntary assent thereto. This resolution, however, was not found in the original or in the published copy of the treaty, or in the proclamation of the President, which contained the treaty without the amendments. With reference to this the court observed: The power to make treaties is vested by the Constitution in the President and the Senate, and, while this proviso was adopted by the Senate, there was no evidence that it ever received the sanction or approval of the President. It cannot be considered as a legislative act, since the power to legislate is vested in the President, Senate and House of Representatives. There is something, too, which shocks the conscience in the idea that a treaty can be put forth as embodying the terms of an arrangement with a foreign power or an Indian tribe, a material provision of which is unknown to one of the contracting parties, and is kept in the background to be used by the other only when the exigencies of a particular case may demand it. The proviso appears never to have been called to the attention of the tribes, who would naturally assume that the treaty embodied in the Presidential proclamation contained all the terms of the arrangement.'

"In short, it seems to me entirely clear that this resolution cannot be considered a part of the treaty.

"I think it equally clear that it cannot be treated as a legislative act, though it may be conceded that under the decisions of this court Congress has the power to disregard or modify a treaty with a foreign state. This was not done.

"The resolution in question was introduced as a joint resolution, but it never received the assent cf the House of Representatives or the signature of the President. While a joint resolution, when approved by the President, or, being disapproved, is passed by two-thirds of each house, has the effect of a law, (Const. art. 1, sec. 7,) no such effect can be given to a resolution of either house acting independently of the

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other. Indeed, the above clause expressly requires concurrent action upon a resolution before the same shall take effect.'

"This question was considered by Mr. Attorney General Cushing in his opinion on certain Resolutions of Congress, (6 Ops. Atty. Gen. 680,) in which he held that while joint resolutions of Congress are not distinguishable from bills, and have the effect of law, separate resolutions of either house of Congress, except in matters appertaining to their own parliamentary rights, have no legal effect to constrain the action of the President or Heads of Departments. The whole subject is there elaborately discussed.

"In any view taken of this resolution it appears to me that it can be considered only as expressing the individual views of the Senators voting upon it.

"I have no doubt the treaty might have provided, as did the act of Congress annexing Hawaii, that the existing customs relations between the Spanish possessions ceded by the treaty and the United States should remain unchanged until legislation had been had upon the subject; but in the absence of such provision the case is clearly controlled by that of De Lima vs. Bidwell."

Mr. Justice GRAY, Mr. Justice SHIRAS, Mr. Justice WHITE and Mr. Justice MCKENNA dissented, for the reasons stated in their opinions in De Lima vs. Bidwell, 182 U. S. 1, 200-220, in Dooley vs. United States, 182 U. S. 222, 236-243, and in Downes vs. Bidwell, 182 U. S. 244, 287–347. HENRY W. DOOLEY ET AL., PLAINTIFFS IN ERROR, vs. THE UNITED STATES.

In error to the Circuit Court of the United States for the Southern District of New York for abstract of record, appearance, briefs and cases cited see p. 501 of this APPENDIX, ante. No. 207, October term, 1901.

[Decided December 2, 1901.]

This was an action begun in the Circuit Court as a Court of Claims by the firm of Dooley, Smith & Co., to recover duties exacted of them and paid under protest to the collector of the port of San Juan, Porto Rico, upon merchandise imported into that port from the port of New York after May 1, 1900, and since the Foraker act. This act requires all merchandise coming into Porto Rico from the United States' to be 'entered at the several ports of entry upon payment of fifteen per centum of the duties which are required to be levied, collected and paid upon like articles of merchandise imported from foreign countries.'

A demurrer was interposed by the District Attorney upon the ground that the court had no jurisdiction of the subject of the action, and also that the complaint did not state facts sufficient to constitute a cause of action. The demurrer to the complaint for insufficiency was sustained, and the petition dismissed.

Mr. Justice BROWN delivered the opinion of the court as follows: "This case raises the question of the constitutionality of the Foraker act, so far as it fixes the duties to be paid upon merchandise imported

into Porto Rico from the port of New York. The validity of this requirement is attacked upon the ground of its violation of that clause of the Constitution (Art. 1, sec. 9) declaring that no tax or duty shall be laid on articles exported from any State.'

"While the words 'import' and 'export' are sometimes used to denote goods passing from one State to another, the word 'import,' in connection with the provision of the Constitution that 'no State shall levy any imposts or duties on imports or exports,' was held in Woodruff vs. Parham, (8 Wall. 123,) to apply only to articles imported from foreign countries into the United States.

"That was an action to recover a tax imposed by the city of Mobile for municipal purposes, upon sales at auction. Defendants, who were auctioneers, received in the course of their business for themselves, or as consignees or agents for others, large amounts of goods and merchandise, the products of other States than Alabama, and sold the same in Mobile to purchasers, in unbroken and original packages. The Supreme Court of Alabama decided the case in favor of the tax, and the case came here for review.

"The question, as stated by Mr. Justice Miller, was whether merchandise brought from other States and sold, under the circumstances stated, comes within the prohibition of the Federal Constitution, that no State shall, without the consent of Congress, levy any imposts or duties on imports or exports.' Defendants relied largely upon a dictum in Brown vs. Maryland, (12 Wheat. 419,) to the effect that the principles laid down in that case as to the non-taxability of imports from foreign countries might perhaps apply equally to importations from a sister State.

"In discussing this question, and particularly of the power of Congress to levy and collect taxes, duties, imposts and excises, Mr. Justice MILLER observed: 'Is the word, 'impost,' here used, intended to confer upon Congress a distinct power to levy a tax upon all goods or merchandise carried from one State into another? Or is the power limited to duties on foreign imports? If the former be intended, then the power conferred is curiously rendered nugatory by the subsequent clause of the ninth section, which declares that no tax shall be laid on articles exported from any State, for no article can be imported from one State into another which is not at the same time exported from the former. But if we give to the word 'imposts' as used in the first mentioned clause, the definition of Chief Justice Marshall, and to the word 'export' the corresponding idea of something carried out of the United States, we have, in the power to lay duties on imports from abroad, and the prohibition to lay such duties on exports to other countries the power and its limitations concerning imposts.'

"It is not too much to say that, so far as our research has extended, neither the word 'export,' 'import' or 'impost' is to be found in the discussion on this subject, as they have come down to us from that time, in reference to any other than foreign commerce, without some special form of words to show that foreign commerce is not meant. Whether we look, then, to the terms of the clause of the Constitution in question, or to its relation to other parts of that instrument, or to the history of

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its formation and adoption, or to the comments of the eminent men who
took part in those transactions, we are forced to the conclusion that no
intention existed to prohibit, by this clause,' (that no State shall, with-
out the consent of Congress, levy any impost or duty upon any export
or import,) the right of one State to tax articles brought into it from
another.' This definition of the word impost was afterwards approved
in Brown vs. Houston, (114 U. S. 623). See also Fairbank vs. United
States (181 U. S. 283).

'It follows, and is the logical sequence of the case of Woodruff vs. Par-
ham, that the word 'export' should be given a correlative meaning,
and applied only to goods exported to a foreign country. (Muller vs.
Baldwin, L. R. 9 Q. B. 457.) If, then, Porto Rico be no longer a foreign
country under the Dingley act, as was held by a majority of this court
in De Lima vs. Bidwell, (182 U. S. 1,) and Dooley vs. United States, (182
U. S. 222,) we find it impossible to say that goods carried from New
York to Porto Rico can be considered as 'exported' from New York
within the meaning of that clause of the Constitution. If they are
neither exports nor imports, they are still liable to be taxed by Con-
gress under the ample and comprehensive authority conferred by the
Constitution 'to lay and collect taxes, duties, imposts and excises.'
(Art. 1, sec. 8.)

"In another view, however, the case presented by the record is,
whether a duty laid by Congress upon goods arriving at Porto Rico from
New York is a duty upon an export from New York, or upon an import to
Porto Rico. The fact that the duty is exacted upon the arrival of the
goods at San Juan certainly creates a presumption in favor of the latter
theory. At the same time it is possible that it may also be a duty upon
an export. The mere fact that the duty is not laid at the port of depart-
ure is by no means decisive against its being such. It is too clear for
argument that if vessels bound for a foreign country were compelled to
stop at an intermediate port and pay into the Treasury of the United
States a duty upon their cargoes, such duty would be a tax upon an
export, and the place of its exaction would be of little significance. The
manner in which and the place at which the tax is levied are of minor
consequence. Thus in Brown vs. Maryland, (12 Wheat. 419,) it was held
that an act of a State legislature requiring importers of foreign goods to
take out a license was a violation of the Constitution declaring that no
State shall, without the consent of Congress, lay any impost or duty on
imports or exports; and in the recent case of Fairbank vs. United States,
(181 U. S. 283,) we held that a discriminating stamp tax upon bills of
lading, covering goods to be carried to a foreign country, was a tax upon
exports within the same provision of the Constitution.

"One thing, however, is entirely clear. The tax in question was im-
posed upon goods imported into Porto Rico, since it was exacted by the
collector of the port of San Juan after the arrival of the goods within
the limits of that port. From this moment the duties became payable
as upon imported merchandise. (United States vs. Howell, 5 Cranch,
368; Arnold vs. United States, 9 Cranch, 104; Meredith vs. United States,
13 Pet. 486.) Now while an import into one port almost necessarily in-

volves a prior export from another, still, in determining the character of the tax imposed, it is important to consider whether the duty be laid for the purpose of adding to the revenues of the country from which the export takes place, or for the benefit of the territory into which they are imported. By the third section of the Foraker act imposing duties upon merchandise coming into Porto Rico from the United States, it is declared that whenever the legislative assembly of Porto Rico shall have enacted and put into operation a system of local taxation to meet the necessities of the government of Porto Rico, by this act established, and shall by resolution duly passed so notify the President, he shall make proclamation thereof, and thereupon all tariff duties on merchandise and articles going into Porto Rico from the United States or coming into the United States from Porto Rico shall cease, and from and after such date all such merchandise and articles shall be entered at the several ports of entry free of duty.' And by section four, the duties and taxes collected in Porto Rico in pursuance of this act, less the cost of collecting the same, and the gross amount of all collections and taxes in the United States upon articles of merchandise coming from Porto Rico, shall not be covered into the general fund of the Treasury, but shall be held as a separate fund, and shall be placed at the disposal of the President to be used for the government and benefit of Porto Rico until the government of Porto Rico, herein provided for, shall have been organized, when all moneys theretofore collected under the provisions hereof, then unexpended, shall be transferred to the local treasury of Porto Rico.'

"Now, there can be no doubt whatever that, if the legislative assembly of Porto Rico should, with the consent of Congress, lay a tax upon goods · arriving from ports of the United States, such tax, if legally imposed, would be a duty upon imports to Porto Bico, and not upon exports from the United States; and we think the same result must follow, if the duty be laid by Congress in the interest and for the benefit of Porto Rico. The truth is, that, in imposing the duty as a temporary expedient, with a proviso that it may be abolished by the legislative assembly of Porto Rico at its will, Congress thereby shows that it is undertaking to legislate for the island for the time being and only until the local government is put into operation. The mere fact that the duty passes through the hands of the revenue officers of the United States is immaterial, in view of the requirement that it shall not be covered into the general fund of the Treasury, but be held as a separate fund for the government and benefit of Porto Rico.

"The action is really correlative to that of Downes vs. Bidwell, (182 U. S. 244,) in which we held that Congress could lawfully impose a duty upon imports from Porto Rico, notwithstanding the provision of the Constitution that all duties, imposts and excises shall be uniform throughout the United States. It is true that this conclusion was reached by a majority of the court by different processes of reasoning, but it is none the less true that in the conclusion that certain provisions of the Constitution did apply to Porto Rico, and that certain others did not, there was no difference of opinion.