Macleod v. United States

The appellant, William Stewart MacLeod, surviving partner of MacLeod & Company, brought suit in the court of claims to recover from the United States the amount of certain duties paid by the firm under protest upon a cargo of rice imported into the island of Cebu at the city and port of the same name, in the Philippine Islands, on January 29, 1899. The court of claims decided in favor of the United States and rendered judgment dismissing the petition. 45 Ct. Cl. 339. The case was then appealed to this court.

The court of claims made findings of fact, the substance of which is as follows:

The claimant firm, comprised of the appellant (the survivor) and two others, all citizens of Great Britain, had its head office at Manila, and was engaged in doing a general mercantile business there and elsewhere in the Orient. On January 13, 1899. the claimants chartered an American steamship, the Venus, at Manila, and cleared her in ballast for Saigon, China, whence she sailed for the port of Cebu with a cargo of rice of January 22d, carrying the usual consular papers. Prior to that time it had been the practice of the military authorities at Manila to require importers, residing in that city and shipping rice to points in the Philippines not actually occupied by the United States forces, to present certified manifests covering their cargoes, and to pay the duties thereon to the United States military collector of customs at Manila, which practice was a matter of common knowledge and discussion among the business men in that city, but there is no other evidence charging the claimants with knowledge of the fact.

The collector at Manilla was informed by competitors of the claimants that the latter proposed to ship the cargo to Cebu without paying duty at Manila, and that, as they complied with the requirements of the United States authorities, they would be unable to compete, under such unfair conditions, with the claimants; and the collector received confirmation of such report from the consul at Saigon on the 21st of January, and on the 23d officially notified the claimants that a certified manifest must be presented and duties paid on the cargo at the custom house at Manila. The next day one of the claimants presented in person to the collector a letter stating that there had been no secret as to the movement of the Venus; that she had been openly despatched to Saigon to load a cargo of rice for the Philippines, and that the captain had instructions to secure consular papers, if ordered to Cebu, in case that port should be in the possession of the United States authorities upon his arrival, and that they presumed his papers were in order; that according to their advice, Cebu was in the hands of the republican government, whose authorities would exact the payment of duties, the same in amount as under the Manila tariff; that in selling the cargo they had been required to guarantee that the duties would not exceed those under the Manila tariff; that the claimants protested against paying the duties twice, as it was through no fault of theirs that the duties went to the Cebu authorities, and that, desiring to respect the notification, they would, if instructed, request their Cebu friends to protest against the payment in Cebu because, according to the notification, the Cebu customs were under the control of the United States. At the same time the collector was informed that a ship of the claimants was about to leave Manila for Cebu, which should arrive in time to head off the Venus (which did in fact sail from Manila that day and arrived in Cebu before the Venus); that their intention in so advising the collector was that he might take the steps he thought most expedient, but that the claimants, unless otherwise ordered by the United States, intended to carry out their contract with the purchasers of the cargo, even if required to pay double duties.

Upon the arival of the Vcnus at Cebu, January 29, 1899, the native government demanded the payment of duties on the cargo, and refused to allow its discharge until such payment was made. On February 4, 1899, the duties were paid and the cargo delivered to the purchasers. Upon the arrival of the Venus thereafter at Manila, with a cargo from Cebu, she was at first prevented from discharging her cargo without paying the duties involved in this case, but later was permitted to do Subsequently the collector refused to receive further business from the claimants until the duties in question were paid, and because of such refusal, and in order to transanct further business with the collector, the claimants, involuntarily and under protest, paid the duties demanded.

War was declared with Spain on April 25, 1898, and on May 1, 1898, the forces of the United States captured Manila bay and harbor. The following order of the President was thereafter promulgated:

Executive Mansion, July 12, 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.

The protocol of August 12, 1898, provided that 'the United States will occupy and hold the city, bay, and harbor of Manila, pending the conclusion of a treaty of peace which shall determine the control, disposition, and government of the Philippines.' [30 Stat. at L. 1742.] Manila was opened as a port of entry on August 20, 1898, and Cebu on March 14, 1899. The Executive order of July 12, 1898, was not proclaimed in Cebu until February 22, 1899, or later. The treaty of peace was signed on December 10, 1898, but ratifications were not exchanged until April 11, 1899. [30 Stat. at L. 1754.] The Spanish forces evacuated the island of Cebu on December 25, 1898, having first appointed a provisional governor. Shortly thereafter the native inhabitants, formerly in insurrection against Spain, took possession of the island, formed a so-called republic, and administered the affairs of the island until possession was surrendered to the United States on February 22, 1899, prior to which time no authorities of the United States had been in the island, and the United States had not been in possession or occupation of the island, it having been up to that time in the actual physical possession of the Spanish and the people of the island.

Messrs. Barry Mohun, L. T. Michener, J. N. Wolfson, and P. G. Michener for appellant.

Mr. Frederick De. Courcy Faust, Acting Assistant Attorney General, for appellee.

[Argument of Counsel from pages 422-424 intentionally omitted]

Statement by Mr. Justice Day:

Mr. Justice Day, after making the foregoing statement, delivered the opinion of the court: