Transcript of Record — De Lima v. Bidwell

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(17,994.)

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1900.

No. 509.

CARLOS ARMSTRONG, APPELLANT,

US.

THE UNITE. STATES.

APPEAL FROM THE COURT OF CLAIMS.

INDEX.

Original Prout

UCN age ON Poh chia se ik mC vienod wank I I

Schedule A—Bill of particulars............ 0.0 ....... 5. 8 5

| ea rae sp Sete ore eerine eee 10 7

ESTA an eae ry prt 11 7

Petition for appeal .... .. Lp tat tinea reais BG 12 s

Order allowing appeal...................... Se ee eee 12 8

I BG ek us es bale sas kw cea bX Lows Suwdaales 13 &

——..

Jupp & Derweiier, Printers, Wasntnaton, D. C., Decemper 17, 1900.

‘ARLOS ARMSTRONG VS. THE UNITED STATES, !

C

1 In the Court of Claims.

Cartos ARMSTRONG )

vs. No. 21791.

Tue UNirep STATES OF Awenica. {

I.—Petition.

On the 3ist day of March, 1900, the claimant filed his original

petition. :

On the 13th day of November, 1900, the claimant, by leave of

court, filed an amended petition, which is as follows:

Amended Petition.

Filed November 13, 1900.

I. The petitioner, Carlos Armstrong, by leave of the court first had

and obtained, amends his original petition herein and says that by

mistake of his attorney-in-fact it was alleged in the said original

petition that he (this petitioner) was a citizen of the United States,

whereas in truth the petitioner was at the time said per was filed,

and is now, and was at all the times hereafter stated, a subject of the

Queen of Great Britain, being a native of England and never having

renounced or forfeited his allegiance to the sovereign of that king-

dom; and he says that by the common law of Great Britain, and by

the act of 25d and 24 Victoria, July 3, 1860, citizens of the United

States of America had, when the petition was filed herein, and now

have, the right to institute and prosecute suit—in the form of a peti-

tion of right—against the government thereof for the recovery of

money due, or other thing wrongfully withheld, and that in such

proceedings, judgments may be rendered as in other cases according

to the nature and extent of the relief to which the suitor is entitled

at law or in equity.

2 II. He says that all the times hereinafter mentioned he

was a merchant doing business as such at Ponce in the island

of Porto Rico, and that in the course of his business as such mer-

chant, and for the purpose of carrying on his said business, the

titioner imported directly from other ports of the United States

overnment into said Porto Rico articles and merchandise of the

“growth, produce or manufacture of the United States, or which if

grown, produced or manufactured in other countries, had been reg-

ularly entered in ports of entry” of the United States and lawful

duties paid thereon.

HI. Mat prior to the twelith day of August, 1898, a state of war

existed between the Kingdom of Spain and the United States of

America, and prior to said date the said island of Porto Rico be-

longed to the Kingdom of Spain as a colonial possession thereof, and

been for a long time prior to said date under the sovereignty of

the Kingdom of Spain, which had there established a civil govern-

1—509

2 CARLOS ARMSTRONG VS. THE UNITED STATES.

ment with the proper civil and municipal authorities, and the said

government had enacted, among other laws, certain tariff or cus.

toms duties upon imports into the island of Porto Rico from the

United States and other countries, and such Spanish or Porto Rican

tariff or customs laws were in force at the time of the seizure and

occupation of the said island by the military and naval forces of the

United States in the month of July, 1898.

IV. That on the twelfth day of August, 1898, a protocol, provid-

ing for the cession of the island of Porto Rico to the United States

for a treaty of peace between the Kingdom of Spain and the United

States of America and for the cession of the island of Porto Ricoto

the United States, was duly signed by the representatives of

both governments, and thereafter and on the tenth day of

3 December, 1898, the treaty of peace was entered into and duly

signed by the duly watorinad representatives of both govern-

ments, and thereafter and on the sixth day of February, 1899, the

said treaty of peace was duly ratified by the Senate of the United

States of America and was thereafter ratified by the Queen Regent

of Spain on the nineteenth day of March, 1899, and by the Spanish

cortes, and ratifications thereof were exchanged at the city of Wash-

ington in the District of Columbia on the eleventh day of April,

1899, and on the same day proclaimed by the President of the United

States of America.

V. That sig? to the signing of the said protocol and in the

month of July, 1898, after the first landing of the military forces of

the United States upon the island of Porto Rico, there were a few

skirmishes between the United States forces and the Spanish forces

stationed on said island, but that all hostilities of every kind ceased

from : ad after the twelfth day of August, 1898, the date of the sign-

ing of the protocol as aforesaid, and from that date down to the

present time there have been no hostilities of any kind upon said

island and no military operations of any kind have been conducted

by the United States forces against the Spanish forces or against any

other nostile forces on said island, but that immediately upon the

signing of said protocol and as therein provided the said island was

abandoned by Spain and her possession and sovereignty thereof re

linquished and all the Spanish naval and military forees were imme-

diately withdrawn and the said island was evacuated and all public

property on said island was delivered to and taken possession of by

the United States under the said protocol, and said island has ever

since been and now is in the peaceable possession and under the

sovereignty of the United States; and since the twelfth day

4 of August, 1898, the said island has been and now is in a cot-

dition of peace and the inhabitants thereof have been in the

enjoyment of civil rights, except as such rights have been affected

by certain orders of the President and of the War Department and

of the military forces of the United States, more particularly the

orders for the collection of duties herein referred to. Be

VI. That under the terms of a certain proclamation of Major Gen-

eral Miles, commanding the United States military forces in Porto

Rico, the former Spanish and Porto Rican customs and tariff laws

| CARLOS ARMSTRONG VS. THE UNITED STATES.

were continued in operation and duties upon imports into the said

island from the United States were collected thereunder in that part

of the island then occupied by the military forces of the United

States from the twenty-sixth day of July, 1898, until the 19th day

of August, 1898. :

VIL. That on the nineteenth day of August, 1898, the customs

tariff and regulations for ports in Porto Rico in possession of the

United States, was promulgated by an order of the President of the

United States and duties were collected thereunder until the first

dav of February, 1899.

VIII. That on the first day of February, 1899, the amended cus-

toms tariff and regulations for ports in Porto Rico was promulgated

by an order of the President of the United States, as a tariff fixing and

providing forthe collection of duties upon imports into Porto Rico from

all the ports of the United States as well as from foreign countries,

and thereafter duties were collected under the said amended customs

tariff and regulations and the amendments thereof made from time

to time by order of the President of the United States.

5 IX. That during the period above mentioned, to wit, from

the twelfth day of August, 1898, until the fifth day of Decem-

ber, 1899, the imposition and collection ox, customs duties upon all

imports into the island of Porto Rico from the various ports of the

United States, including the imports of the petitioner from the ports

of New York, Baltimore and Philadelphia, and upon all exports

from the said ports of the United States, including the goods ex-

orted to your petitioners from the ports aforesaid to the island of

orto Rico, were in fact made and enforced, levied and collected by

the War Department and by the military forces of the United States,

and that no par of said customs duties collected during théperiod

from August 12, 1898, to December 5, 1899, under the said Spanish

tariff and under the proclamation of Major General Miles and under

the customs tariff and regulations and amended customs tariff and

regulations, was levied or collected by the Treasury Department of

the United States, or by any of the civil authorities of the United

States.

X. That all the duties so collected by the War Department and

military authorities of the United States, including the duties paid

by your petitioners upon the imports into Porto Rico from the United

States and exports from the United States into Porto Rico, are now

in the possession of and held by the United States of America.

XI. That between the said dates of August 12, 1898, and Deeem-

ber 5, 1899, the petitioner, in conducting his business as aforesaid,

and, in order to carry on his said business, purchased in other ports

of the United States to wit: New York, Baltimore and Philadelphia,

and ordere’, on consignment from said ports, certain goods, wares

and merchandise, necessary in-his said business, which said

6 goods, wares and merchandise were the “growth, produce or

manufacture of the United States,” or if of the “ growth, pro-

duce or manufacture of a foreign country” had been duly entered

and lawful duty paid thereon in some one of the other ports of entry

wof the United States, which said goods, wares and merchandise, so

4 CARLOS ARMSTRONG Vs. THE UNITED STATES.

“ego or consigned, were shipped directly to the port of Ponce,

orto Rico, from said other ports of the United States. That on the

arrival of said goods, wares and merchandise in the port of Ponce

Porto Rico, the same were regularly entered by the petitioner as re.

quired by the military officers of the United States, and by the eus

toms regulations made by the President, and were taken into posses.

sion and custody of the United States, and on such portions thereof

as were received prior to February 1, 1899, duties and taxes were

charged and collected under orders promulgated by the President

of the United States, and on such portions thereof as were received

after February 1, 1899, duties and taxes were charged in accordance

with a certain amended order, rules, regulations and schedules ac.

companying the same made and issued by the President of the

United States, dated January 20, 1895, and promulyated through the

War Department—to all which orders, rules and regulations and

schedules, petitioner begs leave to refer on the trial hereof; that the

surrender and delivery of said goods, wares and merchandise were

refused the petitioner by the officers and agents of the United States

unless and until he should pay the aforesaid duties and taxes thereon.

- XII. That said officers and agents of the United States demanded

and collected of the petitioner, against his protest and over his ob-

jection, duties and taxes on said goods, wares and merchandise as

aforesaid, and petitioner, in order to obtain his said goods, wares and

merchandise, and continue to carry on his business, was compelled

to, and did, pay duties and taxes as aforesaid to said officers

7 and agents at the port of entry of Ponce, Porto Rico, at the

dates, and for the goods, wares and merchandise, and in the

several sums set out in annexed schedules, marked “Schedule A,”

made part hereof, aggregating a total sum of $31,530.65, lawful

money of the United States, and which said money was received into

the Treasury of the United States.

XIII. The petitioner further alleges that, as he is informed by

counsel, the imposition and collection of the duties aforesaid were

in violation of the rights and privileges secured to the petitioner

under the Constitution and laws of the United “tates of Ameria,

and that the imposition and collection of such duties are in viola-

tion of the treaty of peace between the United States and Spain

hereinbefore referred to and of the Constitution of the United States.

XIV. And the petitioner further shows that no part of the said

duties paid under protest as aforesaid has ever been repaid to them

by the United States, although payment thereof has been demanded

And by reason of the facts aforesaid, the sum of $31,530.65 was, and

is now due and owing to the petitioner from the United States.

Wherefore petitioner demands judgment against the United States

for the sum of thirty-one thousand five hundred and thirty dollars

and sixty-five cents ($31,530.65) with interest and costs.

JOHN ©. CHANEY,

Attorney of Record for Claimant.

JOHN G. CARLISLE, Of Counsel.

on

CARLOS ARMSTRONG VS. THE UNITED STATES.

Crry or WASHINGTON, |

District of Columbia, |

>

John G. Carlisle, being first duly sworn, deposes and Says: That

he is one of the attorneys of the claimant named in the foregoing

amended petition; that no assignment or transfer of said claim or

any part thereof, or interest therein has been made; and that the

claimant is rightfully and justly entitled to the full amount named

and stated in the said petition, after allowing all just credits and

set-offs, and that he believes the facts stated in the amended

tion to be true. J.G. CARLISLE.

Subscribed and sworn to before me this thirteenth day of Novem-

1900.

~ GEORGE W. TAYLOR.

[seat] Notary Public.

8 SCHEDULE A.

P |

38 | |

Pe Date. Where from. | po

92 | August 22, 1898 | New York ............ccccccccccecse $6,365.73

93 OSD) Rete PRET Vo ak Sa ae ors 162.34

rn a os aia 487.81

RY ie Se ia Sek, Sapte the anagem aE 4,230.46

317.“ SR Ee ACE WT SltubbaedpGncassaneiinnnss A2

Oe pica lys! he. w. genbabte abaeheuenahiobeees | 38.42

Pa SR oe: By age Be ae arctreriaee 150.17

45; Nov. 10, “ | 4 =< -aiiidien beidsinlathonaighe seacce as 2,302.39

“ eit ee a Ls 13.57

Mma See TRE, Sit ee ee Ra ee AIR? 11.19

ey 1 es wy O: | eebablibemegerenDeebis ose 4,154.22

674. so. bee Ti; sie bbehuapbneatpenaktteneds 1,819.04

es | Ree LEN w . ehacdebigavesasbatnseouens 95.29

at ee > wis @bhsoneRESeReenedcassesoes 50

Jan. 4,1890;, “ D =, Meipbaniraddahbitesdakushind | 2,139.28

‘i , cae By... ot” gielaaendebindionnbineeetes 11.17

SE 9 eS sean Ran eR a 14.00

825)“ RLY ieee on fupadaterevdiximbiaisaees 3.72

$22; “ aR SA SAR. *: Suanéubleasioasansasenatec 2,028.26

399 1G So PY : pei eaebndsdiasanbtedatng 1.21

359“ My oe SMAI ny FORA. Tadaiewbageialenceyealagieie’ | 564.26

451) “ Pea! TL Cis Sedbeubuqhabtesmienvlece: 223.67

4460 sia teis Tel alll apo oe Oe eardncet | 223.67

March 6, “ Bayi” Siinienipapanbinsieciasie 911.12

pit. SE eRe. SN aie SDE eRe Ones 70.14

S

Su

£3

es

35

os

~~

—

681

723

102

932

903

901

957

949

1001

10380

1029

1139

1209

9

1200

1301

1362

1378

1455

1450

1446

1744

1687

1729

1767

1938

2005

2086

2193

2271

2464

2661

2752

2756

2808

2821

2519

2986

2990

9971

3063

CARLOS ARMSTRONG VS. THE UNITED STATES,

“

Schedule A—Continued.

Date.

21,

24,

28,

5,

“

11,

17,

20,

20,

24,

26,

27,

10,

12,

16,

19,

20,

1,

5,

7,

“

March 18, 1890

“

Where from.

NS, Oo” RES Se

“ “

ELD, Ea

NS ORES ERE

Bee

“ “

4 seteeeeeeseeeeeeteenens

Ss. Se

oy ere eee

DC. RR

“ “

¥ MS seeeeeneneeeeeeeeneneenen

ee

“ “

: Mo seeeeeeneneeteneneetees

A eeeeeaenenteneneeeeneenn

, M seeeeteeeneneneneeeeneeen

‘ MO seeeeaeeneneteneetenteen

: A seneeeeeeneseneresesneen

. MO seeteneeenenenteneneencen

3 A eeeeeeeeneneeeeeeeesteen

: MS seneteneneneneetenenenen

: ot tenths

; Sac

: “Gio anvaieen acme

, a NS

‘pip i areas

is aca Se 8 ee |

es tak eC |

. pe Puen eras

5 Rr erat ok

: Peed: SRR

: Peas seu epic ommeiaae

ee

“ NAT De RISE OE

6 nea

TRS te creeaemmes

: Mf aeeeetene |

Duties

paid.

$223.67

612.90

71.10

4.90

2909 7()

36.46

10.16

21.0%

107.29

17.46

21.61

154.40

PS elied

Ole

2,519.23

59.93

8.50

3.00

9.95

24.24

233.11

40.13

712.89

21.59

57.56

59.59

1,099.75

15.91

1,176.08

32.78

32.00

3,320.70

9.08

20.28

465.54

11.68

5277

26

158.57

867.11

916.55

CARLOS ARMSTRONG VS. THE UNITED STATES. 7

Schedule A—Continued.

ra ]

38 | | Dati

25 | eR , eee Juuies

a | Date. | Where from. paid.

93 |

ge | |

SREB OED, Bae Rte: BASU IR

3068 | Sept. 21, 1899 | New York .........cseeeseseeeen | $18.79

3203 |“ Se pee ee RT ee Nn | 275.14

| SR Siaae ancemaer cee ree | 776.00

3304)“ re 1 pe kagehbecetuermenbecaaies | 20.10

3334) “ Pasa Be OS duseaeenanagaitnsasicea pene 47.50

3343. |“ Rte pink Mt eusepeeecseneses ceaseesess 5.78

$333 |“ eee aN ge bees gee wr epee ae ene poen | 6.38

a2; rein eN' GPR: rn phlnseaddsvassnbsebindeses 71.95

ET IO. ky ee es cama hinvaegcotesapae 76.38

3549 |“ jetta ib Re ee poe SES 1,814.50

3790; “ ean ay Mr | Nand ana Keke tRosepenase rune 301,63

S967 | Dec, 5, 8 aasecennnnnnnnnnnnnnenna | 48

| ORME cvsucsio paensadih Gitsierialavtieaualsasaae tienes — $31,530.65

CARLOS ARMSTRONG.

10) I1—Demurrer to the Petition. Filed December 1, 1900.

Now comes the defendants, by their Attorney General, and demur

to the petition in this cause on the following grounds :

Ist. That the court has not jurisdiction to try the cause of action

set forth in the petition.

2nd. That the petition does not allege facts sufficient to consti-

tute a cause of action.

L. A. PRADT,

Assistant Attorney General.

11 =UL—Order Sustaining Demurrer and Dismissing Petition.

CARLOS ARMSTRONG )

“8. No. 21791.

Unirep STates. if

At a Court of Claims held in the city of Washington, on the 10th

day of December, A. D. 1900, it was ordered and adjudged that the

defendants’ demurrer to the petition in this case be sustained upon

the ground that the said petition does not allege facts sufticient to

constitute a cause of action, and it was ordered, adjudged, and de-

creed et the petition of the claimant, Carlos Armstrong, be dis-

missed.

By tur COURT.

8 CARLOS ARMSTRONG Vs. THE UNITED STATES, Be,

12 [V.—Application for and Allowance of Ajpeal.

CARLOS ARMSTRONG )

v8. . No. 21791.

Unirep Srares. |

Comes now the petitioner, by John C. Chaney, lis attorney herein,

and moves the court for an appeal to the Supreme Court of the

United States from the judgment of this court sustaining thede

murrer of the defendants to the petition in said cause on the 10th }

day of December, A. D. 1900, and dismissing the petition.

CARLOS ARMSTRONG, Petitioner,

By JOHN C. CHANEY, I/is Attorney.

Filed December 11, 1900.

December 11, 1900.

Ordered that the foregoing application for allowance of appeal be |

allowed as prayed for.

By rue COURT.

13 In the Court of Claims.

CARLOS ARMSTRONG \

v8. No. 21791.

UNITED STATES.

I, John Randolph, assistant clerk of the Court of Claims, hereby

certify that the foregoing are true transcripts of pleadings in the

above-entitled cause of the judgment of the court sustaining the de

murrer of the defendants and dismissing the petition, of the _

cation of the claimant for and the allowance of appeal to the

-_preme Court of the United States.

In testimony whereof I have hereunta set

my hand and affixed the seal of said Court

of Claims this 15th day of December, A.D.

190-.

Seal Court of Claims.

JOHN RANDOLPH,

Asst Clerk, Court of Claims.

Endorsed on cover: File No.,17994. Courtof Claims. Term No,

509. Carlos Armstrong, appellant, vs. The United States. Filed

December 15th, 1900.