Tartar Chemical Co. v. United States

U.S. Circuit Court for the District of Southern New York

Tartar Chemical Co. v. United States

116 F. 726, 1902 U.S. App. LEXIS 4377

CourtU.S. Circuit Court for the District of Southern New York

DecidedJune 27, 1902

StatusPublished

This text of 116 F. 726 (Tartar Chemical Co. v. United States) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tartar Chemical Co. v. United States, 116 F. 726, 1902 U.S. App. LEXIS 4377 (circtsdny 1902).

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Opinion

COXF, Circuit Judge.

The only question presented by this appeal is whether or not Algeria is a part of France. The law of October, 1870, expressly abolishes the colonial government and adds the three departments of Algeria to those of European France. The French embassador, M. Cambon, the French minister of foreign affairs, M. Delcassé, the French consul general at New York, M. Bruwaert, and the counselor of the French embassy, M. De Mar-gene, all unite in" declaring that since the law of 1870 Algeria is as much a part of the French republic as is Corsica or any of the departments of European France. They say that Algeria^ is as much a part of France as New York is a part of the United States or as Long Island is a part of the state of New York. It would seem that at this point controversy should end. The question is one of law arising upon undisputed facts regarding the political character of territory concededly the property of a foreign nation with whom this country is at peace. It is not a question of fact regarding a disputed boundary line between independent states of which the executive branch of the government may take cognizance. If the title to Algeria were in dispute between France and another power, of course, a very different question would be presented. That the status of French territory must be determined by the law of France, seems too obvious for argument. The law incorporating Algeria into the republic of France is in evidence. It is not ambiguous and there can be little doubt as to the meaning of its provisions. The proof, however, does not end here. The law has been interpreted and explained by the statesmen, publicists and diplomats of France. Such opinions are paramount to those of encyclopedists, lexicographers and historians, even if it be assumed that they have expressed contrary opinions since the decree of October 24, 1870, went into effect. That they have done so does not appear. If the court cannot rely [729]*729upon the lawyers of France to interpret their own statutes where can it turn for information? What other guide can be followed in dealing with international problems ? If the United States assumes to question the right of France to say what is the political complexion of her own territory we must concede a similar privilege regarding our own domain. Should any foreign state assert that territory, which our laws declare to be within the Union, is not the territory of this republic, would we not be justified in resenting it as an impertinent intermeddling with our domestic affairs? The commercial dealings between great nations should be carried on in a spirit of comity and with a disposition on the part of each to rely upon the honor and good faith of the other. But it is said that the provisions of certain French tariff laws are inconsistent with the proposition that the Algerian departments are a part of the republic of France. Cui bono? The provisions of a tariff act cannot expatriate a state. Can it be seriously maintained that a French customs tariff can operate to make the island of Martinique a department of the French republic or to exclude therefrom the island of Corsica or Normandy or Burgundy? States are not made and unmade by revenue laws. As before observed the tariff acts relied upon are not in evidence, but, admitting them to be as stated, how can the court assume that under the French tariff scheme a department may not be favored or discriminated against in the assessment of duties? There is nothing in the record to show what is the organic law of France upon this subject. There is no basis for the assumption that it is the same as our own. Such a law as is said to exist between France and Algeria might be held unconstitutional here, but is this so in France? In the absence of proof the court must assume the contrary. Indeed the court may almost take judicial notice that the French revenue policy is not uniform and is totally different from our own. There is nothing in this country which at all approximates the French octroi, which is a duty levied at the gates of French towns upon goods seeking to enter. One-tenth goes to the national treasury and the remainder towards local expenses. Octroi officers are permitted to search all travelers and individuals entering a town. Every American who has visited the French capital has probably been amazed and annoyed at the activity of these officers. The French government derives a large revenue from the octroi of Paris.

Again, it is argued that this is not- a judicial but a political question; that because the executive officers of the government have expressed an opinion regarding it, the courts are bound by that opinion no matter how much they may differ with its reasoning. Even if this were a subject upon which" the executive departments would have jurisdiction,'if the subject were properly presented to them, it is not at all certain that jurisdiction can be invoked in the informal way disclosed by this record. The opinions expressed were, as the court recalls the correspondence, in the line of comity rather than the result of a controversy which demanded action on the part of the executive officers of the government. But, however this may be, the court is clearly of the opinion that this is a ques[730]*730tion for the courts. Under section 14 of the customs administrative act jurisdiction is vested in the board of general appraisers to examine and decide each controversy submitted to it for decision. Section 15 gives the court jurisdiction on appeal to “proceed to hear and determine the questions of law and fact involved in such decision respecting the classification of such merchandise and the rate of duty imposed thereon.” 26 Stat. 137, 138.

The authorities cited by the district attorney do not seem to be relevant to the present controversy. In Foster v. Neilson, 2 Pet. 253, 7 L. Ed. 415, the controversy related to territory in dispute between the United States and Spain. Chief Justice Marshall said:

“In a controversy between two nations concerning national boundary, it is scarcely possible that tbe courts of either should refuse to abide by the measures adopted by its own government. There being no common tribunal to decide between them, each determines for itself on its own rights, and if they cannot adjust their differences peaceably, the right remains with the strongest. The judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided; and its duty, commonly, is to decide upon individual rights according to those principles which the political departments of the nation have established. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous.”

In Jones v. U. S., 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691, the plaintiff in error was indicted for murder committed at Navassa Island in the Caribbean Sea. The question debated was whether Navassa was under the sole and exclusive jurisdiction of the United States, and the court, after an examination of the act of congress relating to the discovery of guano islands and the determination of the president thereunder, decided that the courts of the United States could take cognizance of a crime committed there. Mr. Justice Gray says:

“Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of that government.”

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COXF, Circuit Judge.

The only question presented by this appeal is whether or not Algeria is a part of France. The law of October, 1870, expressly abolishes the colonial government and adds the three departments of Algeria to those of European France. The French embassador, M. Cambon, the French minister of foreign affairs, M. Delcassé, the French consul general at New York, M. Bruwaert, and the counselor of the French embassy, M. De Mar-gene, all unite in" declaring that since the law of 1870 Algeria is as much a part of the French republic as is Corsica or any of the departments of European France. They say that Algeria^ is as much a part of France as New York is a part of the United States or as Long Island is a part of the state of New York. It would seem that at this point controversy should end. The question is one of law arising upon undisputed facts regarding the political character of territory concededly the property of a foreign nation with whom this country is at peace. It is not a question of fact regarding a disputed boundary line between independent states of which the executive branch of the government may take cognizance. If the title to Algeria were in dispute between France and another power, of course, a very different question would be presented. That the status of French territory must be determined by the law of France, seems too obvious for argument. The law incorporating Algeria into the republic of France is in evidence. It is not ambiguous and there can be little doubt as to the meaning of its provisions. The proof, however, does not end here. The law has been interpreted and explained by the statesmen, publicists and diplomats of France. Such opinions are paramount to those of encyclopedists, lexicographers and historians, even if it be assumed that they have expressed contrary opinions since the decree of October 24, 1870, went into effect. That they have done so does not appear. If the court cannot rely [729]*729upon the lawyers of France to interpret their own statutes where can it turn for information? What other guide can be followed in dealing with international problems ? If the United States assumes to question the right of France to say what is the political complexion of her own territory we must concede a similar privilege regarding our own domain. Should any foreign state assert that territory, which our laws declare to be within the Union, is not the territory of this republic, would we not be justified in resenting it as an impertinent intermeddling with our domestic affairs? The commercial dealings between great nations should be carried on in a spirit of comity and with a disposition on the part of each to rely upon the honor and good faith of the other. But it is said that the provisions of certain French tariff laws are inconsistent with the proposition that the Algerian departments are a part of the republic of France. Cui bono? The provisions of a tariff act cannot expatriate a state. Can it be seriously maintained that a French customs tariff can operate to make the island of Martinique a department of the French republic or to exclude therefrom the island of Corsica or Normandy or Burgundy? States are not made and unmade by revenue laws. As before observed the tariff acts relied upon are not in evidence, but, admitting them to be as stated, how can the court assume that under the French tariff scheme a department may not be favored or discriminated against in the assessment of duties? There is nothing in the record to show what is the organic law of France upon this subject. There is no basis for the assumption that it is the same as our own. Such a law as is said to exist between France and Algeria might be held unconstitutional here, but is this so in France? In the absence of proof the court must assume the contrary. Indeed the court may almost take judicial notice that the French revenue policy is not uniform and is totally different from our own. There is nothing in this country which at all approximates the French octroi, which is a duty levied at the gates of French towns upon goods seeking to enter. One-tenth goes to the national treasury and the remainder towards local expenses. Octroi officers are permitted to search all travelers and individuals entering a town. Every American who has visited the French capital has probably been amazed and annoyed at the activity of these officers. The French government derives a large revenue from the octroi of Paris.

Again, it is argued that this is not- a judicial but a political question; that because the executive officers of the government have expressed an opinion regarding it, the courts are bound by that opinion no matter how much they may differ with its reasoning. Even if this were a subject upon which" the executive departments would have jurisdiction,'if the subject were properly presented to them, it is not at all certain that jurisdiction can be invoked in the informal way disclosed by this record. The opinions expressed were, as the court recalls the correspondence, in the line of comity rather than the result of a controversy which demanded action on the part of the executive officers of the government. But, however this may be, the court is clearly of the opinion that this is a ques[730]*730tion for the courts. Under section 14 of the customs administrative act jurisdiction is vested in the board of general appraisers to examine and decide each controversy submitted to it for decision. Section 15 gives the court jurisdiction on appeal to “proceed to hear and determine the questions of law and fact involved in such decision respecting the classification of such merchandise and the rate of duty imposed thereon.” 26 Stat. 137, 138.

The authorities cited by the district attorney do not seem to be relevant to the present controversy. In Foster v. Neilson, 2 Pet. 253, 7 L. Ed. 415, the controversy related to territory in dispute between the United States and Spain. Chief Justice Marshall said:

“In a controversy between two nations concerning national boundary, it is scarcely possible that tbe courts of either should refuse to abide by the measures adopted by its own government. There being no common tribunal to decide between them, each determines for itself on its own rights, and if they cannot adjust their differences peaceably, the right remains with the strongest. The judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided; and its duty, commonly, is to decide upon individual rights according to those principles which the political departments of the nation have established. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous.”

In Jones v. U. S., 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691, the plaintiff in error was indicted for murder committed at Navassa Island in the Caribbean Sea. The question debated was whether Navassa was under the sole and exclusive jurisdiction of the United States, and the court, after an examination of the act of congress relating to the discovery of guano islands and the determination of the president thereunder, decided that the courts of the United States could take cognizance of a crime committed there. Mr. Justice Gray says:

“Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of that government.”

In other words, the court, inferentially at least, seems to recognize the right of the legislative and executive departments of France to regulate and declare the political status of territory over which the republic exercises undisputed ownership and dominion.

In Williams v. Insurance Co., 13 Pet. 415, 10 L. Ed. 226, it appeared that there was a dispute between the United States and Buenos Ayres regarding the jurisdiction of the Falkland Islands, and the president, in a message to congress and in correspondence with that country, having denied the jurisdiction of Buenos Ayres, the court declined to consider the question of fact presented, holding that the president’s action was not the subject of judicial investigation.

A mere statement of the facts in these cases sufficiently emphasizes the wide difference between them and the case at bar.

The decision of the board is reversed.

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116 F. 726, 1902 U.S. App. LEXIS 4377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tartar-chemical-co-v-united-states-circtsdny-1902.

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