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by disregarding fundamental rules of real property governing in the island, thereby creating confusion and uncertainty, and hence tending to the destruction of the rights of innocent third parties. Especially is this conclusion rendered necessary when a consideration, previously adverted to, is again called to mind, that is, that all the local law of Porto Rico is within the legislative control of Congress. The considerations which we have thus expounded are illustrated in various other aspects by previous rulings, concerning the construction and import of the Foraker Act. Crowley v. United States, 194 U. S. 461; Rodriguez v. United States, 198 U. S. 156; Seralles v. Esbri, 200 U. S. 103; American R. Co. v. Castro, 200 U. S. 453.

The decree of the District Court for Porto Rico must be reversed, and the cause remanded for further proceedings conformable to this opinion.

UNITED STATES v. HEINSZEN & COMPANY.

APPEAL FROM THE COURT OF CLAIMS.

No. 580. Argued April 9, 10, 1907.-Decided May 27, 1907.

Congress in dealing with the Philippine Islands may delegate legislative authority to such agencies as it may select and may ratify the acts of agents as fully as if such acts had been specially authorized by a prior act of Congress.

The act of June 30, 1906, 34 Stat. 636, legalizing and ratifying the imposition and collection of duties by the authorities of the United States in the Philippine Islands prior to March 8, 1902, was within the power of Congress and can be given effect without depriving persons who had paid such duties of their property without due process of law or taking their property for public use without compensation in violation of the Fifth Amendment.

The mere commencement of a suit does not affect the right of Congress to ratify executive acts and the fact that at the time the ratifying statute was enacted actions were pending for the recovery of sums paid does not cause the statute to be repugnant to the Constitution. References in De Lima v. Bidwell, 182 U. S., as to want of power to ratify after suit brought are to be regarded as obiter dicta.

THE facts are stated in the opinion.

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The Attorney General, the Solicitor General and Mr. Assistant Attorney General Van Orsdel, with whom Mr. George M. Anderson was on the brief, for appellant:

This case is essentially different from the case of Warner, Barnes & Co. v. United States, 197 U. S. 419.

"The judgment in that case was res adjudicata only of the issue then presented, of the facts as they then appeared, and of the legislation then existing." Utter v. Franklin, 172 U. S. 416. Here the issues are altogether new-the lack of protest and the power of Congress to ratify under the new act of 1906. The matter of protest was not raised before until rehearing, and the court will recall the suggestion then made from the bench that the defense came too late. Here it has been emphasized from the start. The petition asserts actual duress because the regulations provided that vessels should be placed under military guard until discharge. That regulation applied, of course, to all vessels, and would excuse failure to protest on importations from foreign countries as well as from the United States. The phrase "military guard" means only customs control, and that is the very term employed in the amendment to this particular paragraph of the regulations dated May 24, 1899. The law and customs regulations of the United States require exactly the same control by boarding, examination and custody pending discharge under civilian inspectors. If this was duress, then the same compulsion and extortion to prevent smuggling and secure duties are practiced daily at all ports of the United States.

If there is no compulsion, payment is voluntary and protest will not avail. Where there can be a recovery, protest is necessary. It is so in all tax cases and especially in customs

cases.

Protest is doubtless and necessarily a rule of all customs law. It was the rule of the Spanish law of the Philippines, which was equivalent to an express statute. It was the rule of these regulations (par. 10). Of course this is a customs case, although not one under the Customs Administrative Act of

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the United States. Counsel say not, that it is military contribution. But their previous victory rested on the basis that the military exaction ceased on April 11, 1899.

There was no protest or objection whatever here. The claim. was an afterthought, and the courts do not regard that position with favor. It is noticed in Dewell v. Mix, 116 Fed. Rep., a customs case, and in similar terms in Newhall v. Jordan, 149 Fed. Rep., advance sheets, and the objection is concisely put in the Chesebrough case, 192 U. S. 253; and see also the Edmonston case, 181 U. S. 504.

No distinction can be drawn because here the suit is against the United States and not against the agent. Elliott v. Swartwout, 10 Pet. 153.

The act of 1906 encounters the limitations of De Lima v. Bidwell, 182 U. S. 1, and has done so in clear terms, from which there is no escape so far as intention is concerned.

De Lima v. Bidwell simply holds that an act not retroactive in terms could not have that effect as to duties theretofore paid under protest for which an action to recover back had already been brought.

But see Grim v. School District, dealing with taxation for the public use, to effect that if an act of assembly be within the legitimate scope of legislative power, it is not a valid objection that it divests vested rights even after suit brought; that if the legislature had the antecedent power to authorize a tax, they could cure a want of authority as well as a mere irregularity in levying it by a retroactive law. If the use is public, if it is taxation, the rule against divesting vested rights for private benefit does not apply. It was not the less taxation because the tax was levied without authority at the time, and the question now is as to the effect of the validating act. It was taxation and just taxation although not valid taxation.

There was due process of law through protest and appeal which the claimants failed to invoke at the proper time. The claimants have no equities; they collected the duties from their customers and they received the usual compensation

206 U. S.

Argument for Appellant.

for a tax in the maintenance of a Government which made life and property safe and their business possible. In the De Lima case the retroactive intention and effect were not clear, and protest was duly made. Here the case is quite otherwise as to both matters.

This is a question of constitutional power, not of expediency or even fairness, although no just mind need shrink from giving full effect to this law on the ground that it is repugnant to the spirit of our institutions or the principles of natural justice.

Counsel say that our authorities do not apply, because before the Fourteenth Amendment was adopted the only restraint on the States in this domain was as to impairing the obligation of contracts or passing ex post facto laws. There is no case which says that the law which did not impair a contract or was not ex post facto was not however due process of law and yet could be enforced. For the most part the authorities on retroactive legislation cited in the opposing brief either do not refer to taxation at all but to the familiar case (as in Wilkinson v. Leland, Palairet's Appeal, etc.) of transferring the property of A. to B. and thus divesting vested estates; or else, in the tax cases, the citizen had never had his day in court at all, at any time, or the act was only intended to cure irregularities and not to validate a total want of authority.

As to what is a vested right see Kent's definition, "An immediate right of present enjoyment or a present fixed right of future enjoyment;" and Cooley's, "Rights are vested in contradistinction to being expectant or contingent. They are vested when the right of enjoyment, present or prospective, has become the property of some particular person or persons, as a present interest." Now if our military authorities should take some tangible piece of property for the use of the Quartermaster's Department, let us say, without any relation, of course, to the owner's obligation to contribute his share to the support of Government, that would be a taking of private

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property for public use, and compensation would be due. That right would be vested by the Constitution. The right here involved is property, in a qualified sense, because it is a right of action; but it is not a vested right. It is not manifestly contingent a mere right of action. Such a right of action is not to be regarded as vesting or as constituting property until recovery has been finally adjudged. The bringing of suit is the mere assertion of an undetermined right. Before judgment all is contingent; the right is inchoate, not complete; there is a right to bring suit which may of course be taken away before suit brought, but the included and underlying right of property into which the action may eventually ripen is only inchoate. Evans v. McFadden, 105 Fed. Rep. 293, affirmed 185 U. S. 505.

By the act of 1906 Congress did not take any right of the claimants vested beyond the power of the legislature. The fact that the right will not be beyond controversy unless and until this court adjudges this case in their favor is proof of that statement. The act in effect said, as it constitutionally might do In these cases the United States, the sovereign, declines to be sued; it withdraws its consent; so far at least as such claims are concerned, not already reduced to judgment, it denies the right to sue.

Mr. Frederic R. Coudert and Mr. Henry M. Ward, with whom Mr. John G. Carlisle and Mr. Paul Fuller were on the brief, for appellees:

The decisions of this court in De Lima v. Bidwell, Dooley v. United States and Lincoln and Warner Barnes v. United States hold that Congress has not the power to ratify the collection of moneys exacted without warrant of law under the circumstances disclosed by the record now before the court.

As to the power of Congress to ratify the illegal exaction of moneys after suit brought for their recovery, see De Lima v. Bidwell, 182 U. S. 1, 199.

Legislatures cannot by retroactive laws impair vested

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