UNITED STATES, Appt., v.

AMERICAN SUGAR REFINING COM¬ PANY.

(See S. C. Reporter’s ed. 563-580.)

when a treaty is to go into effect is to be fixed, not by its provision that it is to become operative ten days after exchange of rati¬ fications, but by an act of Congress, where the Senate has added an amendment to the treaty, declaring that it shall not take ef¬ fect until approved by Congress.

lation to render treaty operative. — A retrospective operation will not be given to the provision of the act of December 17, 1903 (33 Stat. at L. 3, chap. 1, U. S. Comp. Stat. Supp. 1905, p. 393), that the treaty with Cuba of December 11, 1902, shall be¬ come effective on the tenth day after the ex¬ change of ratifications, because such rati¬ fications had in fact been exchanged some time before the statute was enacted.

from Cuba were not entitled, under the treaty of December 11, 1902, to the 20 per cent reduction from the duties imposed by the tariff act of July 24, 1897 (30 Stat. at L. 151, chap. 11, U. S. Comp. Stat. 1901, p. 1626), until . December 27, 1903, — the date proclaimed by the President of the United States and the President of the Cuban Republic for the commencement of the opera¬ tion of the treaty.

[No. 269.]

Argued April 27, 1906. Decided May 28,

APPEAL from the Circuit Court of the United States for the Southern Dis¬ trict of New York to review a judgment reversing the decision of the board of ap¬ praisers that goods imported from Cuba be¬ tween June 12 and September 28, 1903, were chargeable with full duties. Reversed and remanded, with instructions to affirm the order of the Board of General Appraisers. See same case below, 136 Fed. 508.

Note. — As to retrospective legislation — -see notes to Franklin County Grammar School v. Bailey, 10 L.R.A. 405 ; Stewart v. Vandervort, 12 L.R.A. 50 ; Otoe County v. Baldwin, 28 L. ed. U. S. 331 ; and Barnitz v. Beverly, 41 L. ed. U. S. 94.

72

1149

564-500

Supreme Court of the United States.

Oct. Term,

Statement by Mr. Justice McKenna:

The question in the case is whether cer¬ tain sugars which were imported between the 12th of June and the 28th of September, 1903, were chargeable with full duties un¬ der the tariff act of July 24, 1897 [30 Stat. at L. 151, chap. 11, U. S. Comp. Stat. 1901, p. 1626], or were entitled to 20 per cent reduction of duties prescribed by that act, under the treaty between the United States and Cuba of the date December 11, 1902, and an act of Congress of December 17, 1903 [33 Stat. at L. 3, chap. 1, U. S. Comp. Stat. Supp. 1905, p. 393], The answer to the question depends upon when the treaty went into effect; whether upon the 10th of April, 1903, or the 27th of December, 1903. The appellant contends for the former and the appellee for the latter date. Duties were assessed under the act of 1897 without re¬ duction. Protests were filed and an appeal taken to the board of appraisers, who sus¬ tained the collector. The decision of the board was reversed by the circuit court. The treaty provided (33 Stat. at L. 2136, 2142) among other things as follows:

“The President of the United States of America . . . and the President of the

Republic of Cuba . . . have, in consid¬

eration of and in compensation for the re¬ spective concessions and engagements made by each to the other, as hereinafter recited, agreed, and do hereby agree, upon the fol¬ lowing articles for the regulation and gov¬ ernment of their reciprocal trade, namely:

Article 2.

“During the term of this convention all articles of merchandise not included in the foregoing article 1, and being the product of the soil or industry of the Republic of Cuba, imported into the United States, shall be admitted at a reduction of 20 per centum of the rates of duty thereon, as provided by the tariff act of the United States, ap-

proved July 24th, 1897, or *as may be pro¬ vided by any tariff law of the United States subsequently enacted.”

Article 11 was as follows:

“The present convention shall be ratified by the appropriate authorities of the re¬ spective countries, and the ratifications shall be exchanged at Washington, District of Columbia, United States of America, as soon as may be before the thirty-first day of January, 1903, and the convention shall go into effect on the tenth day after the exchange of ratifications, and shall continue in force for the term of five (5)years from date of going into effect, and' from year to year thereafter until the expiration of one year from the day when either of the con¬ tracting parties shall give notice to the 1150

other of its intention to terminate the same.”

By supplemental treaty signed January 26, 1903 (33 Stat. at L. 2145), it was provided that “the respective ratifications of the said convention shall be exchanged as soon as possible, and within two months from January 31, 1903.”

March 19, 1903, the Senate added the following amendment at the end of article 11: “This convention shall not take effect until the same shall have been approved by the Congress.”

On March 31, 1903, ratifications were ex¬ changed. At this date Congress was not in session, but was convened in special ses¬ sion November 9, 1903, and passed on De¬ cember 17, 1903 (33 Stat. at L. 3, chap. 1,

U. S. Comp. Stat. Supp. 1905, p. 393) an act entitled: “An Act to Carry into Effect a Convention between the United States and the Republic of Cuba, Signed on the 11th Day of December in the Xear 1902.” Sec¬ tion 1 provides as follows:

“That whenever the President of the United States shall receive satisfactory evi¬ dence that the Republic of Cuba has made provision to give full effect to the articles of the convention between the United States and the Republic of Cuba, signed on the eleventh day of December, in the year nine¬ teen hundred and two, he is hereby author¬ ized to issue his proclamation declaring that he has received such evidence, and thereupon, on the tenth day after exchange of ratifications of such convention between *the United States and the Republic of Cuba,

and so long as the said convention shall remain in force, all articles of merchandise being the product of the soil or industry of the Republic of Cuba, which are now im¬ ported into the United States free of duty, shall continue to be so admitted free of duty, and all other articles of merchandise being the product of the soil or industry of the Republic of Cuba imported into the United States shall be admitted at a re¬ duction of twenty per centum of the rates of duty thereon, as provided by the tariff act of the United States approved July twenty-four, eighteen hundred and ninety- seven, or as may be provided by any tariff law of the United States subsequently en¬ acted. The rates of duty herein granted by the United States to the Republic of Cuba are, and shall continue, during the term of said convention, preferential in respect to all like imports from other countries: Pro¬ vided, That, while said convention is in force, no sugar imported from the Republic of Cuba, and being the product of the soil or industry of the Republic of Cuba, shall be admitted into the United States at a reduction of duty greater than

202 U. S-

United States v. American Sugar Ref. Co.

twenty per centum of the rates of duty thereon, as provided by the tariff act of the United States approved July twenty- fourth, eighteen hundred and ninety-seven, and no sugar the product of any other for¬ eign country shall be admitted by treaty or convention into the United States while this convention is in force at a lower rate of duty than that provided by the tariff act of the United States approved July twenty- fourth, eighteen hundred and ninety-seven : And provided further , That nothing herein contained shall be held or construed as an admission on the part of the House of Rep¬ resentatives that customs duties can be changed otherwise than by an act of Con¬ gress originating in said House.”

The same day (December 17, 1903) the President issued his proclamation (33 Stat. at L. 2136), which, after setting forth the treaty and the act of Congress, and reciting the above facts, together with the fact that ratifications of said convention had been exchanged on March 31, 1903, declared:

*“And whereas satisfactory evidence has been received by the President of the United States that the Republic of Cuba has made provision to give full effect to the articles of said convention ;

“Now, therefore, be it known that I, Theodore Roosevelt, President of the United States of America, in conformity with the said act of Congress, do hereby declare and proclaim the said convention, as amended by the Senate of the United States, to be in effect on the tenth day from the date of this, my proclamation.”

Solicitor General Hoyt argued the cause, and, with Attorney General Moody and Mr. William R. Harr, filed a brief for appellant:

The propriety of referring to the history of this legislation in order to ascertain the intention of Congress is affirmed by numer¬ ous authorities.

United States v. Union P. R. Go. 91 U. S. 72, 79, 23 L. ed. 224, 228; Platt v. Union P. R. Go. 99 U. S. 48, 64, 25 L. ed. 424, 429 ; American Net & Twine Go. v. Worthing¬ ton, 141 U. S. 468, 474, 35 L. ed. 821, 824, 12 Sup. Ct. Rep. 55; Church of the Roly Trinity v. United States, 143 U. S. 457, 463, 36 L. ed. 227, 229, 12 Sup. Ct. Rep. 511; United States v. Burr , 159 U. S. 78, 85, 40 L. ed. 82, 84, 15 Sup. Ct. Rep. 1002; United States v. Laws, 163 U. S. 258, 262, 41 L. ed. 151, 153, 16 Sup. Ct. Rep. 998; Dunlap v. United States, 173 U. S. 65, 75, 43 L. ed. 616, 619, 19 Sup. Ct. Rep. 319.

It was clearly within the eonstitutional authority of Congress to make the oper¬ ation of the act dependent upon the ascer¬ tainment and proclamation by the President 202 U. S.

566, 567, 576

of the fact that Cuba had made provision to carry into effect the treaty.

Marshall Field d Go. v. Clark, 143 U. S. 649, 36 L. ed. 294, 12 Sup. Ct. Rep. 495.

Even if the approval of Congress and the action of the President were not strictly in accordance with the terms of the treaty, no one but Cuba could take exception there¬ to. The interpretation and enforcement of treaty stipulations of this character are matters for the determination of the political departments of the government, and the courts must respect their de¬ cision.

Foster v. Nielson, 2 Pet. 253, 7 L. ed. 415; Cherokee Tobacco ( 207 Half Pound Papers of Smoking Tobacco v. United States ) 11 Wall. 616, 20 L. ed. 227; Taylor v. Morton, 2 Curt. 454, Fed. Cas. No. 13,799, 2 Black, 481, 17 L. ed. 277; Head Money Gases ( Edye v. Robertson) 112 U. S. 580, 598. 28 L. ed. 798, 804, 5 Sup. Ct. Rep. 247; Whit¬ ney v. Robertson, 124 U. S. 190, 195, 31 L- ed. 386, 388, 8 Sup. Ct. Rep. 456 ; . Botiller v. Dominguez, 130 U. S. 238, 247, 32 L. ed. 926, 928, 9 Sup. Ct. Rep. 525; Chinese Ex¬ clusion Case, 130 U. S. 581, 600, 602, 32 L. ed. 1068, 1073, 1074, 9 Sup. Ct, Rep. 623; Fong Yue Ting v. United States, 149 U. S. 698, 721, 37 L. ed. 905, 915, 13 Sup. Ct. Rep.

United States v. Burr, 159 U. S. 78, 40 L. ed. 82, 15 Sup. Ct. Rep. 1002, is con¬ trolling.

If, as this court has held, Congress may make the operation of a law depend upon the happening of a certain event (Marshall Field & Co. v. Clark, supra ) by a parity of reasoning the treaty-making power may make the operation of a treaty depend upon a like contingency.

Furthermore, this court has recognized the fact that, while some treaties are self- executing, others may require legislation by Congress to make them effective.

Foster v. Neilson, supra ; United States v. Arredondo, 6 Pet. 691, 8 L. ed. 547.

Mr. John G. Johnson argued the cause, and, with Messrs. John E. Parsons and R. B. Closson, filed a brief for appellee.

Messrs. Edward S. Hatch, J. Stuart Tomp¬ kins, and Hatch d Clute, filed a brief for importers having interests similar to those of appellee.

After stating the case as above, Mr. Jus¬ tice McKenna delivered the opinion of the court:

The treaty as drafted and presented to the Senate provided for an exchange of rat¬ ifications at Washington as soon as might be before the 31st day of January, 1903, and should “go into effect on the tenth day after the exchange of ratifications.” A sup-

1151

576-578

Supreme Court of the United States.

Oot. Term,

plemental convention became necessary, and an exchange of ratifications was provided to be “as soon as possible and within two months from January 31, 1903.” But sub¬ sequent to that date, to wit, March 19, 1903, the Senate added the amendment: “This convention shall not take effect until the same shall have been approved by the Con¬ gress.” Between the treaty, therefore, and the amendment, there was an emphatic dif¬ ference. The date at which the instrument should go into effect was changed. It can¬ not be said that the treaty provision re¬ lated to time and the amendment to sanc¬ tion merely, and adopted the time of the treaty. To do this would be to interpret the words of the treaty one way and the same words in the amendment another way. We start, then, with the proposition that not the treaty, but the act of Congress, was to fix the date that the treaty should take effect. What date Congress fixed is the question to be considered. It was certainly competent for Congress (with the consent

of Cuba) *to have given the treaty retro¬ spective, immediate, or prospective opera¬ tion. Which did Congress do? And in reply we are to remember there is a pre¬ sumption against retrospective operation, and we have said that words in a statute ought not to have such operation “unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legis¬ lature cannot be otherwise satisfied.” Unit¬ ed States v. Burr, 159 U. S. 78, 40 L. ed. 82, 15 Sup. Ct. Rep. 1002. On the other hand, it must be admitted that there are words in tne act of Congress which, if not of themselves, yet, in connection with events, may be said to look to a retrospec¬ tive operation. It is not, however, an un¬ usual judicial problem to have to seek the meaning of a law expressed in words not doubtful of themselves, but made so by cir¬ cumstances or the objects to which they come to be applied.

Both the treaty and the act of Congress concern tariff duties, and “the usual course in tariff legislation,” we have said, “has been, inasmuch as some time is necessary to enable importers and business men to act understandingly, to fix a future date at which the statutes are to become operative.” United States v. Burr, supra. And these remarks have application here. The treaty, it may be admitted, was intended as a bene¬ ficial concession to Cuba. But conditions in the United States were dlso to be con¬ sidered, and we cannot assume that this would have been overlooked by Congress when legislating. It is true, as urged by appellant, that the act of December 17 deals 1152

entirely with importations from Cuba, but it is those which would have the most dis turbing effect, and on account of which business in like produces would have to fee accommodated. These, as well as the con¬ siderations urged by the appellant, must be kept in mind in seeking the meaning of Con¬ gress, and we repeat that, under the Senate amendment, it is the meaning of Congress not the meaning of the convention inde¬ pendent of that of Congress, we are to ascer¬ tain. It was open to Cuba to reject the amendment; it was open to Cuba to reject the legislation. If she chose to accept both they became her contracts.

*Turning to the act of December 17 we find

it expressed in the simple future tense, and this must be given weight. United States v. Goldenberg, 168 U. S. 95, 102, 42 L. ed.

394, 398, 18 Sup. Ct. Rep. 3. So far as the text of the act itself is concerned all of its parts accord; all of its provisions are pro¬ spective but one. That pertained to the then present, the date of the act. It pro¬ vided that all products which were imported free should continue to be admitted free.

The provision is “all articles . . . which

are now imported . . . free of duty shall continue to be so admitted. ...”

This accords with and reinforces the pro¬ spective provisions, and was apparently used with deliberate and provident inten¬ tion, making the act provide for the present and future, excluding the past, certainly not expressing it. Passing from the text of the act, an element of confusion appears. Rati¬ fications had been exchanged between the United States and Cuba on March 31, 1903.

The text of the act provides “that whenever the President . . . shall receive satis¬

factory evidence that the Republic of Cuba has made provision to give full effect to the article of the convention ... he is hereby authorized to issue his proclama¬ tion declaring that he has received such evi¬ dence, and thereupon, on the tenth day after exchange of ratifications of such convention,

. . . and so long as the said convention

shall remain m force, all articles of mer¬ chandise being the product ... of the Republic of Cuba, which are now Imported . , . free of duty shall continue to be

so admitted free of duty, and all other ar¬ ticles . . . shall be admitted at a re¬

duction of 20 per cent of the rates of duty thereon as provided by the tariff act of the United States approved July 24, 1897.

. . . ” The words of the act, therefore,

refer manifestly to an event to occur, which seemingly had already occurred, and, upon such event, it is contended, the treaty, by its own terms and by the act of Congress took effect; to wit, “the exchange of ratifica¬ tions” of the convention. To this the gov-

202 U. S.

Franklin Sugar Ref. Co. v. United States. 578-580

ernment replies that Congress, not being in session at the time, was ignorant that ratifications had been exchanged, and framed its legislation with the view that some further provision by Cuba was neces-

sary. *If we may not accept tne explanation of Congress’s ignorance, it is not unreason¬ able to suppose that Congress considered it wTas still open to Cuba to accept or reject the treaty, and to make sure of her accept¬ ance before the treaty should go into effect in the United States. This view satisfies completely the text of the act. We cannot suppose that, if Congress intended to give retrospective operation to the act, it would have used the words that expressed the con¬ trary. The day at which the treaty should operate was important, and would necessar¬ ily be ever present in mind, and it was of easy expression. Future time and past time are directly opposite, and by no inadvert- anee or intention can we believe or suppose that Congress, having in mind and purpose the distinction between the past and the fu¬ ture, should use language that expressed the one while it meant to provide for the other.

There is another important fact. The treaty was a reciprocal arrangement and in¬ tended to go into effect coincidently in the United States and Cuba. The two nations provided for this. On the day the Presi¬ dent approved the act of Congress, he issued his proclamation declaring that the treaty should go into effect on the 27th day of December. On the 17th of December the President of Cuba also issued his proclama¬ tion, stating tuat Congress had approved the treaty in accordance with the require¬ ments of article 11, and declaring that the treaty should take effect in Cuba on the day named in the proclamation of the Presi¬ dent of the United States, — December 27,

very essence of the convention. It would indeed be anomalous if a treaty which pro¬ vided the reciprocal concessions should be in operation in one nation eight months be¬ fore it was in operation in the other. And this is not adequately answered as ap¬ pellee answers it, by saying that the Presi¬ dent of Cuba and the President of the Unit¬ ed States were both mistaken as to the date of the operation of the treaty, and their mistake could not affect the rights of im¬ porters. Cqrtamly not if a mistake could be conceded. But the action of the Presi-

dents is proof against *the existence of mis¬ takes. It shows the understanding of the Executives of the two countries, and affords confirmation of the view that Congress con¬ templated action subsequent to its legisla¬ tion to put the treaty into effect.

The judgment of the Circuit Court is re¬ versed and the case remanded, with direc- 202 TJ. S.

tions to affirm the order of the Board of General Appraisers.