WEEK TWO CASES
G.R. No. L-2855 July 30, 1949
BORIS MEJOFF, petitioner,
vs.
DIRECTOR OF PRISONS, respondent.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Lucas
Lacson for respondent.
BENGZON, J.:
The petitioner Boris Mejoff is an alien of Russian descent who was brought
to this country from Shanghai as a secret operative by the Japanese forces
during the latter's regime in these Islands. Upon liberation he was arrested
aa a Japanese spy, by U. S. Army Counter Intelligence Corps. Later he was
handed to the Commonwealth Government for disposition in accordance
with Commonwealth Act No. 682. Thereafter the People's Court ordered his
release. But the deportation board taking his case up, found that having no
travel documents Mejoff was illegally in this country, and consequently
refferd the matter to the immigration authorities. After the corresponding
investigation, the Board oF Commissioners of Immigration on April 5, 1948,
declared that Mejoff had entered the Philippines illegally in 1944,
withoutinspection and admission by the immigration officials at a designated
port of entry and, therefore, it ordered that he be deported on the first
available transportation to Russia. The petitioner was then under custody,
he having been arrested on March 18, 1948. In May, 1948, he was
transferred to the Cebu Provincial Jail together with three other Russians to
await the arrival of some Russian vessels. In July and in August of that year
two boats of Russian nationality called at the Cebu Port. But their masters
refused to take petitioner and his companions alleging lack of authority to
do so. In October, 1948, after repeated failures to ship this deportee
abroad, the authorities removed him to Bilibid Prison at Muntinglupa where
he has been confined up to the present time, inasmuch as the
Commissioner of Immigration believes it is for the best interest of the
country to keep him under detention while arrangements for his deportation
are being made.
It is contended on behalf of petitioner that having been brought to the
Philippines legally by the Japanese forces, he may not now be deported. It
is enough to say that the argument would deny to this Government the
power and the authority to eject from the Islands any and all of that
members of the Nipponese Army of occupation who may still be found
hiding in remote places. Which is absurd. Petitioner likewise contends that
he may not be deported because the statutory period to do that under the
laws has long expired. The proposition has no basis. Under section 37 of
the Philippine Immigration Act of 1940 any alien who enters this country
"without inspection and admission by the immigration authorities at a
designated point of entry" is subject to deportation within five years. In a
recent decision of a similar litigation (Borovsky vs. Commissioner of
Immigration) we denied the request for habeas corpus, saying:
"It must be admitted that temporary detention is a necessary step in the
process of exclusion or expulsion of undesirable aliens and that pending
arrangements for his deportation, the Government has the right to hold the
undesirable alien under confinement for a reasonable lenght of time.
However, under established precedents, too long a detention may justify
the issuance of a writ of habeas corpus.1
"The meaning of "reasonable time" depends upon the circumstances,
specially the difficulties of obtaining a passport, the availability of
transfortation, the diplomatic arrangements concerned and the efforts
displayed to send the deportee away.2 Considering that this Government
desires to expel the alien, and does not relish keeping him at the people's
expense, we must presume it is making efforts to carry out the decree of
exclusion by the highest officer of the land. On top of this presumption
assurances were made during the oral argument that the Government is
really trying to expedite the expulsion of this petitioner. On the other hand,
the record fails to show how long he has been under confinement since the
last time he was apprehended. Neither does he indicate neglected
opportunities to send him abroad. And unless it is shown that the deportee
is being indefinitely imprisoned under the pretense of awaiting a chance for
deportation3 or unless the Government admits that itcan not deport him4 or
unless the detainee is being held for too long a period our courts will not
interfere.
"In the United States there were at least two instances in which courts fixed
a time limit within which the imprisoned aliens should be
deported5 otherwise their release would be ordered by writ of habeas
corpus. Nevertheless, supposing such precedents apply in this jurisdiction,
still we have no sufficient data fairly to fix a definite deadline."
The difference between this and the Borovsky case lies in the fact that the
record shows this petitioner has been detained since March, 1948.
However, considering that in the United States (where transportation
facilities are much greater and diplomatic arrangements are easier to make)
a delay of twenty months in carrying out an order of deportation has not
been held sufficient to justify the issuance of the writ of habeas corpus,6 this
petition must be, and it is hereby denied. So ordered.
Moran, C.J., Ozaeta, Padilla, Montemayor and Reyes, JJ., concur.
Paras, J., I dissent for the same reasons stated in my dissenting opinion in
case No. L-2852.
Feria, J., I dissent on the same ground stated in my dissent in case G. R.
No. L-2852.
Separate Opinions
PERFECTO, J., dissenting:
To continue keeping petitioner under confinement is a thing that shocks
conscience. Under the circumstances, petitioner is entitled to be released
from confinement. He has not been convicted for any offense for which he
may be imprisoned. Government's inability to deport him no pretext to keep
him imprisoned for an indefinite length of time. The constitutional guarantee
that no person shall be deprived of liberty without due process of law has
been intended to protect all inhabitants or residents who may happen to be
under the shadows of Philippine flag.
Our vote is the same as one we cast when the case of Borovsky vs.
Commissioner of Immigration, L-2852, was submitted for decision although,
for some misunderstanding, our vote was overlooked at the time of the
decision was promulgated. Our vote is to grant the petition and to order the
immediate release of petitioner, without prejudice for the government to
deport him as soon as the government could have the means to do so. In
the meantime, petitioner is entitled to live a normal life in a peaceful
country, ruled by the principles of law and justice.
Tuason, J., I dissent on the same ground stated in my dissent in case No.
L-2852.
CASE DIGEST
Boris Mejoff vs Director of Prisons
90 Phil. 70 – Political Law – Universal Declaration of Human Rights
Boris Mejoff was a Russian citizen who was arrested for being
suspected as a Japanese spy after the Philippine liberation. It was
found out that he illegally entered the Philippines in 1944. He was
without inspection and admission by the immigration officials at a
designated port of entry. He was then ordered to be deported to
Russia on the first available transportation to said country. But Russian
ships refused to take him due to their alleged lack of authority to do so.
He was then transferred to the Bilibid Prison and was kept in detention
as the Commissioner of Immigration believes it is of best interest to
detain the unwanted alien while arrangements for his deportation are
being made. Mejoff contends that he was legally brought to the
Philippines by the then Japanese forces and he may not now be
deported. He also contends that the statutory period to deport him has
long lapsed and that we cannot detain him for an unreasonable period
of time pursuant to the Universal Declaration on Human rights.
ISSUE: Whether or not Mejoff shall remain in detention?
HELD: Yes. The government has the power and the authority to eject
from the Philippines any and all unwanted aliens. He entered the
country illegally in 1944 and was arrested in 1948. Pursuant to Section
37 of the Philippine Immigration Act of 1940 an unwanted alien is
subject to deportation within 5 years from arrest. And he may be held
for a reasonable period of time (depending on the circumstances) while
arrangements are being held for his deportation. There is no allegation
however as to the length of time that he has been detained. Hence, the
same cannot be construed as “unreasonable”. Further, there is no
indication that the statutory period to deport Mejoff had lapsed.
United States Supreme Court
EDYE v. ROBERTSON, (1884)
Argued: Decided: December 8, 1884
[112 U.S. 580, 582] Geo. De Forest Lord, for
Cunard Steam-ship Co.
[112 U.S. 580, 584] Philip J. Joachimsen and
Edwards Pierrepont, for Edye and others.
[112 U.S. 580, 586] Sol. Gen. Phillips, for
Robertson, Collector, etc.
MILLER, J.
These cases all involve the same questions of law,
and have been argued before this court together.
The case at the head of the list presents all the facts
in the form of an agreed statement signed by
counsel, and it therefore brings the questions before
us very fully. The other two were decided by the
circuit court on demurrer to the declaration. They
will be disposed of here in one opinion, which will
have reference to the case as made by the record in
Edye et al. v. Robertson. The suit is brought to
recover from Robertson the sum of money received
by him, as collector of the port of New York, from
plaintiffs, on account of their landing in that port
passengers from foreign ports, not citizens of the
United States, at the rate of 50 cents for each of
such passengers, under the act of congress of
August 3, 1882, entitled 'An act to regulate
1
WEEK TWO CASES
immigration.' The petition of plaintiffs and the
agreed facts, which are [112 U.S. 580, 587] also
made the finding of the court to which the case was
submitted without a jury, are the same with regard
to each of many arrivals of vessels of the plaintiffs,
except as to the name of the vessel and the number
and age of the passengers. The statement as to the
arrival first named, which is here given, will be
sufficient for them all, for the purposes of this
opinion.
The following are admitted to be the facts in this
action: '(1) That the plaintiffs are partners in trade in
the city of New York under the firm name of Funch,
Edye & Co., and carry on the business of
transporting passengers and freight upon the high
seas between Holland and the United States of
America as consignees and agents. That on the
second day of October, 1882, there arrived,
consigned to the plaintiffs, the Dutch ship Leerdam,
owned by certain citizens or subjects of the
kingdom of Holland, and belonging to the
nationality of Holland, at the port of New York. She
had sailed from the foreign port of Rotterdam, in
Holland, bound to New York, and carried 382
persons not citizens of the United States. That
among said 382 persons 20 were severally under the
age of one year and 59 were severally between the
ages of one year and eight years. That upon the
arrival of said steam-ship Leerdam within the
collection district of New York, the master thereof
gave, in pursuance to section 9 of the passenger act
of 1882, and delivered to the custom-house officer,
who first came on board the vessel and made
demand therefor, a correct list, signed by the
master, of all the passengers taken on board of said
Leerdam at said Rotterdam, specifying separately
the names of the cabin passengers, their age, sex,
calling, and the country of which they are citizens,
and also the name, age, sex, calling, and native
country of each emigrant passenger or passengers
other than cabin passengers, and their intended
destination or location, and in all other respects
complying with said ninth section, and a duplicate
of the aforesaid list of passengers, verified by the
oath of the master, was, with the manifest of the
cargo, delivered by the master to the defendant as
col- [112 U.S. 580, 588] lector of customs of the
port of New York on the entry of said vessel. That it
appears from the said list of passengers and
duplicate that the said 382 persons were each and
every one subjects of Holland or other foreign
powers in treaty of peace, amity, and commerce
with the United States. That the said passenger
manifest also states the total number of passengers,
and shows that 20 of them were under one year of
age, and 59 between the ages of one year and eight
years. That said collector, before allowing complete
entry of said vessel, as collector decided, on the
twelfth day of October, 1882, that the plaintiffs
must pay a duty of one hundred and ninety-one
dollars for said passengers, being fifty cents for
each of said 382 passengers. That by the regulations
of the treasury department the non-payment of said
191 dollars would have permitted the defendant to
refuse the complete entry of the vessel, or to refuse
to give her a clearance from the port of New York
to her home port, and such imposition would have
created an apparent lien on said vessel for said sum
of 191 dollars. On the defendants making such
demand the plaintiffs paid the same and protested
against the payment thereof. That a copy of the
protest in regard to said Leerdam is annexed to the
complaint, marked 'No. 1,' and is a correct copy of
the protest. That on the same day the plaintiffs duly
appealed to the secretary of treasury from such
decision of the collector, and that the paper marked
'Appeal No. 2,' annexed to the complaint, is a copy
of said appeal. On the eighteenth October, 1882, the
secretary of the treasury sustained the action of the
defendant, and this action is brought within ninety
days after the rendering of such decision. That the
payment set forth in the complaint herein was levied
and collected by defendant, and the same was paid
under and in pursuance of an act of congress
entitled 'An act to regulate emigration,' approved
August 3, 1882.'[112 U.S. 580, 589] On the facts
as thus agreed and as found by the circuit court, a
judgment was rendered in favor of defendant, which
we are called upon to review. There is no complaint
by plaintiffs that the defendant violated this act in
any respect but one, namely, that it did not
authorize him to demand anything for the 20
children under one year old, and for the 59 who
were between the ages of one year and eight years.
The supposed exception of this class of passengers
does not arise out of any language found in this act
to regulate immigration, nor any policy on which it
is founded, but it is based by counsel on a provision
of an act approved one day earlier than this, entitled
'An act to regulate the carriage of passengers by
sea.' This provision limits the number of passengers
which the vessel may carry by the number of cubic
feet of space in which they are to be carried, and it
declares that, in making this calculation, children of
the ages mentioned need not be counted. In
reference to the space they will occupy this
principle is reasonable. But, as regards the purpose
of the immigration act to raise a fund for the sick,
the poor, and the helpless immigrant, children are as
likely to require its aid as adults, probably more so.
They are certainly within the definition of the word
'passenger,' when otherwise within the purview of
the act. This branch of the case requires no further
consideration.
The other errors assigned, however numerous or in
whatever language presented, all rest on the
2
WEEK TWO CASES
proposition that the act of congress requiring the
collector to demand and receive from the master,
owner, or consignee of each vessel arriving from a
foreign port, 50 cents for every passenger whom he
brings into a port of the United States who is not a
citizen, is without warrant in the constitution and is
void. The substance of the act is found in its first
section, namely:
'AN ACT TO REGULATE IMMIGRATION.
'Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled, that there shall be levied,
collected, and paid a duty of fifty cents [112 U.S.
580, 590] for each and every passenger, not a
citizen of the United States, who shall come by
steam or sail vessel from a foreign port to any port
within the United States. The said duty shall be paid
to the collector of customs of the port to which such
passenger shall come, or if there be no collector at
such port, then to the collector of customs nearest
thereto, by the master, owner, agent, or consignee of
every such vessel, within twenty-four hours after
the entry thereof into such port. The money thus
collected shall be paid into the United States
treasury, and shall constitute a fund to be called the
immigrant fund, and shall be used, under the
direction of the secretary of the treasury, to defray
the expenses of regulating immigration under this
act, and for the care of immigrants arriving in the
United States, for the relief of such as are in
distress, and for the general purposes and expenses
of carrying this act into effect.'
The act further authorizes the secretary to use the
aid of any state organization or officer for carrying
into effect the beneficent objects of this law, by
distributing the fund in accordance with the purpose
for which it was raised, not exceeding in any port
the sum received from it, under rules and
regulations to be prescribed by him. It directs that
such officers shall go on board vessels arriving from
abroad, and if, on examination, they shall find any
convict, lunatic, idiot, or any person unable to take
care of himself or herself, without becoming a
public charge, they shall report to the collector, and
such person shall not be permitted to land. It is also
enacted that convicts, except for political offenses,
shall be returned to the nations to which they
belong. And the secretary is directed to prepare
rules for the protection of the immigrant who needs
it, and for the return of those who are not permitted
to land. This act of congress is similar, in its
essential features, to many statutes enacted by states
of the Union for the protection of their own citizens,
and for the good of the immigrants who land at sea-
ports within their borders. That the purpose of these
statutes is humane, is highly beneficial to the poor
and helpless immigrant, and is essential to [112
U.S. 580, 591] the protection of the people in
whose midst they are deposited by the steam-ships,
is beyond dispute. That the power to pass such laws
should exist in some legislative body in this country
is equally clear. This court has decided distinctly
and frequently, and always after a full hearing from
able counsel, that it does not belong to the states.
That decision did not rest in any case on the ground
that the state and its people were not deeply
interested in the existence and enforcement of such
laws, and were not capable of enforcing them if
they had the power to enact them, but on the ground
that the constitution, in the division of powers
which it declares between the states and the general
government, has conferred this power on the latter
to the exclusion of the former. We are now asked to
decide that it does not exist in congress, which is to
hold that it does not exist at all; that the framers of
the constitution have so worded that remarkable
instrument that the ships of all nations, including
our own, can, without restraint or regulation,
deposit here, if they find it to their interest to do so,
the entire European population of criminals,
paupers, and diseased persons, without making any
provision to preserve them from sharvation, and its
concomitant sufferings, even for the first few days
after they have left the vessel. This court is not only
asked to decide this, but is asked to overrule its
decision, several times made with unanimity, that
the power does reside in congress, is conferred upon
that body by the express language of the
constitution, and the attention of congress called to
the duty which arises from that language to pass the
very law which is here in question. That these
statutes are regulations of commerce,-of commerce
with foreign nations,-is conceded in the argument in
this case, and that they constitute a regulation of
that class which belongs exclusively to congress is
held in all the cases in this court. It is upon these
propositions that the court has decided in all these
cases that the state laws are void. Let us examine
those decisions for a moment.
In The Passenger Cases, so called, the report of
which occupies the pages of 7 Howard from page
283 to 573, mostly with opinions of the judges, the
order of the court is that 'it is the [112 U.S. 580,
592] opinion of the court that the statute of New
York, by which the health commissioner of the city
of New York is declared entitled to demand and
receive from the master of every vessel from a
foreign port that shall arrive in the port of that city
the sum of one dollar for each steerage passenger
brought in such vessel, is repugnant to the
constitution and laws of the United States, and
therefore void.' An examination of the opinions of
the judges shows that if the majority agreed upon
any one reason for this order, it was because the law
was a regulation of commerce, the power over
which that constitution had placed exclusively in
3
WEEK TWO CASES
congress. The same examination will show that
several judges denied this, because they held that
this power belonged to the class which the states
might exercise until it was assumed by congress. It
is very clear that if any such act of congress had
existed then as the one now before us, the decision
of the court would have been nearer to unanimity.
In the case of Henderson v. Mayor of New York, 92
U.S. 259 , the whole subject is reviewed, and, in the
light of the division in this court in The Passenger
Cases, it is considered, on principle, as if for the
first time. In that case, after the statute of New York
had been modified in such a manner as was
supposed to remove the objections held good
against it in The Passenger Cases, the question of its
constitutional validity was again brought before this
court, when it was held void by the unanimous
judgment of all its members. And this was upon the
distinct ground that it was a regulation of commerce
solely within the power of congress. 'As already
indicated,' says the court, 'the provision of the
constitution of the United States, on which the
principal reliance is placed, is that which gives to
congress the right 'to regulate commerce with
foreign nations." The court then, referring to the
transportation of passengers from European ports to
those of the United States, says: 'It has become a
part of our commerce with foreign nations, of vast
interest to this country as well as to the immigrants
who come among us, to find a welcome and a home
within our bor- [112 U.S. 580, 593] ders.' 'Is the
regulation of this great system a regulation of
commerce? Can it be doubted that a law which
prescribes the terms on which vessels shall engage
in it is a law regulating this branch of commerce?'
The court adds: 'We are of opinion that this whole
subject has been confided to congress by the
constitution; that congress can more appropriately
and with more acceptance exercise it than any other
body known to our law, state or national; that by
providing a system of laws in these matters,
applicable to all ports and to all vessels, a serious
question which has long been matter of contest and
complaint may be effectually and satisfactorily
settled.' And for this reason the statute of New York
was held void.
In the case of Commissioners of Immigration v.
North German Lloyd, 92 U.S. 259 , a similar statute
of Louisiana was held void for the same reason.
And in the case of Chy Lung v. Freeman,-decided at
the same term,- 92 U.S. 275 , the statute of
California, on the same subject, was also held void,
because, in the language of the head-note to the
report, 'it invades the right of congress to regulate
commerce with foreign nations.'
In the case of People v. Compagnie Generale
Transatlantique, 107 U.S. 59 , S. C. 2 SUP. CT.
REP. 87, where the state of New York, having again
modified her statute, it was again held void, the
court said: 'It has been so repeatedly decided by this
court that such a tax is a regulation of commerce
with foreign nations, confided by the constitution to
the exclusive control of congress,' (referring to the
cases just cited,) 'that there is little to say beyond
affirming the judgment of the circuit court, which
was based on those decisions.'
It cannot be said that these cases do not govern the
present, though there was not then before us any act
of congress whose validity was in question, for the
decisions rest upon the ground that the state statutes
were void only because congress, and not the states,
was authorized by the constitution to pass them, and
for the reason that congress could enact such laws,
and for that reason alone, were the acts of the state
held void. It was, therefore, of the essence of the
decision which held the [112 U.S. 580, 594] state
statutes invalid, that a similar statute by congress
would be valid. We are not disposed to reconsider
those cases, or to resort to other reasons for holding
that they were well decided. Nor do we feel that
further argument in support of them is needed. But
counsel for plaintiffs, assuming that congress, in the
enactment of this law, is exercising the taxing
power conferred by the first clause of section 8, art.
1, Const., and can derive no aid in support of its
action from any other grant of power in that
instrument, argues that all the restraints and
qualifications found there in regard to any form of
taxation are limitations upon the exercise of the
power in this case. The clause is in the following
language: 'The congress shall have power to lay and
collect taxes, duties, imposts, and excises, to pay the
debts and provide for the common defense and the
general welfare of the United States; but all duties,
imposts, and excises shall be uniform throughout
the United States.'
In this view it is objected that the tax is not levied to
provide for the common defense and general
welfare of the United States, and that it is not
uniform throughout the United States. The
uniformity here prescribed has reference to the
various localities in which the tax is intended to
operate. 'It shall be uniform throughout the United
States.' Is the tax on tobacco void because in many
of the state no tobacco is raised or manufactured? Is
the tax on distilled spirits void because a few states
pay three-fourths of the revenue arising from it?
The tax is uniform when it operates with the same
force and effect in every place where the subject of
it is found. The tax in this case, which, as far as it
can be called a tax, is an excise duty on the business
of bringing passengers from foreign countries into
this by ocean navigation, is uniform and operates
precisely alike in every port of the United States
where such passengers can be landed. It is said that
the statute violates the rule of uniformity and the
4
WEEK TWO CASES
provision of the constitution that 'no preference
shall be given by any regulation of commerce or
revenue to the ports of one state over those of [112
U.S. 580, 595] another,' because it does not apply
to passengers arriving in this country by railroad or
other inland mode of conveyance. But the law
applies to all ports alike, and evidently gives no
preference to one over another, but is uniform in its
operation in all ports of the United States. It may be
added that the evil to be remedied by this legislation
has no existence on our inland borders, and
immigration in that quarter needed no such
regulation. Perfect uniformity and perfect equality
of taxation, in all the aspects in which the human
mind can view it, is a baseless dream, as this court
has said more than once. State Railroad Tax
Cases, 92 U.S. 612 . Here there is substantial
uniformity within the meaning and purpose of the
constitution.
If it were necessary to prove that the imposition of
this contribution on owners of ships is made for the
general welfare of the United States, it would not be
difficult to show that it is so, and particularly that it
is among the means which congress may deem
necessary and proper for that purpose, and beyond
this we are not permitted to inquire. But the true
answer to all these objections is that the power
exercised in this instance is not the taxing power.
The burden imposed on the ship-owner by this
statute is the mere incident of the regulation of
commerce-of that branch of foreign commerce
which is involved in immigration. The title of the
act, 'An act to regulate immigration,' is well chosen.
It describes, as well as any short sentence can
describe it, the real purpose and effect of the statute.
Its provisions, from beginning to end, relate to the
subject of immigration, and they are aptly designed
to mitigate the evils inherent in the business of
bringing foreigners to this country, as those evils
affect both the immigrant and the people among
whom he is suddenly brought and left to his own
resources.
It is true, not much is said about protecting the ship-
owner. But he is the man who reaps the profit from
the transaction, who has the means to protect
himself, and knows well how to do it, and whose
obligations in the premises need the aid of the
statute for their enforcement. The sum demanded of
him is not, therefore, strictly speaking, a tax or duty
within the [112 U.S. 580, 596] meaning of the
constitution. The money thus raised, though paid
into the treasury, is appropriated in advance to the
uses of the statute, and does not go to the general
support of the government. It constitutes a fund
raised from those who are engaged in the
transportation of these passengers, and who make
profit out of it, for the temporary care of the
passengers whom they bring among us, and for the
protection of the citizens among whom they are
landed. It this is an expedient regulation of
commerce by congress, and the end to be attained is
one falling within that power, the act is not void
because, within a loose and more extended sense
than was used in the constitution, it is called a tax.
In the case of Veazie Bank v. Fenno, 8 Wall. 549,
the enormous tax of 8 per cent. per annum on the
circulation of state banks, which was designed, and
did have the effect, to drive all such circulation out
of existence, was upheld because it was a means
properly adopted by congress to protect the
currency which it had created; namely, the legal-
tender notes and the notes of the national banks. It
was not subject, therefore, to the rules which would
invalidate an ordinary tax pure and simple. So, also,
in the case of Packet Co. v. Keokuk, 95 U.S. 80 ,
the city of Keokuk having by ordinance imposed a
wharfage fee or tax, for the use of a wharf owned by
the city, the amount of which was regulated by the
tonnage of the vessel, this was held not to be a
tonnage tax within the meaning of the constitutional
provision that 'no state shall, without the consent of
congress, lay any duty of tonnage.' The reason of
this is that, though it was a burden or tax in some
sense, and measured by the tonnage of the vessel, it
was but a charge for services rendered, or for
conveniences furnished by the city, and was not a
tonnage tax within the meaning of the constitution.
This principle was reaffirmed in the case of Same
Plaintiff v. City of St. Louis, 100 U.S. 423 .
We are clearly of opinion that, in the exercise of its
power to regulate immigration, and in the very act
of exercising that power, it was competent for
congress to impose this contribution on the ship-
owner engaged in that business. [112 U.S. 580,
597] Another objection to the validity of this act of
congress is that it violates provisions contained in
numerous treaties of our government with friendly
nations. And several of the articles of these treaties
are annexed to the careful brief of counsel. We are
not satisfied that this act of congress violates any of
these treaties, on any just construction of them.
Though laws similar to this have long been enforced
by the state of New York in the great metropolis of
foreign trade, where four-fifths of these passengers
have been landed, no complaint has been made by
any foreign nation to ours of the violation of treaty
obligations by the enforcement of those laws. But
we do not place the defense of the act of congress
against this objection upon that suggestion. We are
of opinion that, so far as the provisions in that act
may be found to be in conflict with any treaty with
a foreign nation, they must prevail in all the judicial
courts of this country. We had supposed that the
question here raised was set at rest in this court by
the decision in the case of The Cherokee Tobacco,
11 Wall. 616. It is true, as suggested by counsel,
5
WEEK TWO CASES
that three judges of the court did not sit in the case,
and two others dissented. But six judges took part in
the decision, and the two who dissented placed that
dissent upon the ground that congress did not intend
that the tax on tobacco should extend to the
Cherokee tribe. They referred to the existence of the
treaty which would be violated if the statute was so
construed as persuasive against such a construction,
but they nowhere intimated that, if the statute was
correctly construed by the court, it was void
because it conflicted with the treaty, which they
would have done if they had held that view. On the
point now in controversy it was therefore the
opinion of all the judges who heard the case. See U.
S. v. McBratney, 104 U.S. 621 -623.
The precise question involved here, namely, a
supposed conflict between an act of congress
imposing a customs duty, and a treaty with Russia
on that subject, in force when the act was passed,
came before the circuit court for the district of
Massachusetts in 1855. It received the consideration
of that eminent jurist, Mr. Justice CURTIS, of this
court, who in a very learned [112 U.S. 580,
598] opinion exhausted the sources of argument on
the subject, holding that if there were such conflict
the act of congress must prevail in a judicial forum.
Taylor v. Morton, 2 Curt. C. C. 454. And Mr.
Justice FIELD, in a very recent case in the Ninth
circuit, that of In re Ah Lung, on a writ of habeas
corpus, has delivered an opinion sustaining the
same doctrine in reference to a statute regulating the
immigration of Chinamen into this country. 18 Fed.
Rep. 28. In the Clinton Bridge Case, Woolw. 156,
the writer of this opinion expressed the same views
as did Judge WOODRUFF, on full consideration, in
Ropes v. Clinch, 8 Blatchf. 304, and Judge
WALLACE, in the same circuit, in Bartram v.
Robertson, 15 Fed. Rep. 212.
It is very difficult to understand how any different
doctrine can be sustained. A treaty is primarily a
compact between independent nations. It depends
for the enforcement of its provisions on the interest
and the honor of the governments which are parties
to it. If these fail, its infraction becomes the subject
of international negotiations and reclamations, so
far as the injured party chooses to seek redress,
which may in the end be enforced by actual war. It
is obvious that with all this the judicial courts have
nothing to do and can give no redress. But a treaty
may also contain provisions which confer certain
rights upon the citizens or subjects of one of the
nations residing in the territorial limits of the other,
which partake of the nature of municipal law, and
which are capable of enforcement as between
private parties in the courts of the country. An
illustration of this character is found in treaties,
which regulate the mutual rights of citizens and
subjects of the contracting nations in regard to
rights of property by descent or inheritance, when
the individuals concerned are aliens. The
constitution of the United States places such
provisions as these in the same category as other
laws of congress by its declaration that 'this
constitution and the laws made in pursuance
thereof, and all treaties made or which shall be
made under authority of the United States, shall be
the supreme law of the land.' A treaty, then, is a law
of the land as an act of congress is, whenever its
provisions prescribe a rule by which the rights of
the private [112 U.S. 580, 599] citizen or subject
may be determined. And when such rights are of a
nature to be enforced in a court of justice, that court
resorts to the treaty for a rule of decision for the
case before it as it would to a statute. But even in
this aspect of the case there is nothing in this law
which makes it irrepealable or unchangeable. The
constitution gives it no superiority over an act of
congress in this respect, which may be repealed or
modified by an act of a later date. Nor is there
anything in its essential character, or in the branches
of the government by which the treaty is made,
which gives it this superior sanctity. A treaty is
made by the president and the senate. Statutes are
made by the president, the senate, and the house of
representatives. The addition of the latter body to
the other two in making a law certainly does not
render it less entitled to respect in the matter of its
repeal or modification than a treaty made by the
other two. If there be any difference in this regard, it
would seem to be in favor of an act in which all
three of the bodies participate. And such is, in fact,
the case in a declaration of war, which must be
made by congress, and which, when made, usually
suspends or destroys existing treaties between the
nations thus at war. In short, we are of opinion that,
so far as a treaty made by the United States with
any foreign nation can become the subject of
judicial cognizance in the courts of this country, it is
subject to such acts as congress may pass for its
enforcement, modification, or repeal.
Other objections are made to this statute. Some of
these relate, not to the power of congress to pass the
act, but to the measure, of which congress, and not
the courts, measure, f which congress, and not the
courts, are the sole judges-such as its unequal
operation on persons not paupers or criminals, and
its effect in compelling the ultimate payment of the
sum demanded for each passenger by that passenger
himself. Also, that the money is to be drawn from
the treasury without an appropriation by congress.
The act itself makes the appropriation, and even if
this be not warranted by the constitution, it does not
make void the demand for contribution, which may
yet be ap- [112 U.S. 580, 600] propriated by
congress, if that be necessary, by another statute. It
is enough to say that, congress having the power to
6
WEEK TWO CASES
pass a law regulating immigration as a part of the
commerce of this country with foreign nations, we
see nothing in the statute by which it has here
exercised that power forbidden by any other part of
the constitution. The judgment of the circuit court in
all the cases is affirmed.
CASE BRIEF
Head Money Cases Edye v. Robertson 112 U.S.
580 (1884)
Facts:
In 1882 the Congress passed an act providing that a
duty of fifty cents should be collected for each and
every passenger who was not a citizen of the United
States, coming from a foreign port to any port
within the United States. Individuals and steamship
companies brought suit against the collector of
customs at New York, Mr. WH Robertson, for the
recovery of the sums of money collected. The act
was challenge on the grounds that it violated
numerous treaties of the US government with
friendly nations.
Issue:
WON the act is void because of the conflict with the
treaty.
Ruling:
A treaty is a compact between independent nations,
which depends for its enforcement upon the interest
and honor of the governments that are parties to a
treaty. Treaties that regulate the mutual rights of
citizens and subjects of the contracting nations are
in the same category as acts of Congress. When
these rights are of such a nature as to be enforced by
a court of justice, the court resorts to the treaty as it
would to a statute. However, a constitution gives a
treaty no superiority over an act on congress. In
short, so far as a treaty made by the United States
with any foreign nation can become the subject of
judicial cognizance in the courts of this country, it is
subject to such acts as Congress may pass for its
enforcement, modification, or repeal.
U.S. Supreme Court
Whitney v. Robertson, 124 U.S. 190 (1888)
Whitney v. Robertson
Argued December 13-14, 1887
Decided January 9, 1888
124 U.S. 190
ERROR TO THE CIRCUIT COURT OF THE
UNITED
STATES FOR THE SOUTHERN DISTRICT OF
NEW YORK
Syllabus
The Treaty of February 8, 1861, with the
Dominican Republic (art. 9) provides that
"No higher or other duty shall be imposed on the
importation into the United states of any article the
growth, produce, or manufacture of the Dominican
Republic, or of her fisheries, than are or shall be
payable on the like articles the growth, produce, or
manufacture of any other foreign country or of its
fisheries."
The Convention of January 30, 1575, with the King
of the Hawaiian Islands provides for the importation
into the United States, free of duty, of various
articles, the produce and manufacture of those
islands (among which were sugars), in
consideration of certain concessions made by the
King of the Hawaiian Islands to the United
States. Held that this provision in the treaty with the
Dominican Republic did not authorize the
admission into the United States, duty free, of
similar sugars, the growth, produce, or manufacture
of that republic as a consequence of the agreement
made with the King of the Hawaiian Islands, and
that there was no distinction in principle between
this case and Bartram v. Robertson,122 U. S. 116.
By the Constitution of the United States, a treaty
and a statute are placed on the same footing, and if
the two are inconsistent, the one last in date will
control, provided the stipulation of the treaty on the
subject is self-executing.
This was an action to recover back duties alleged to
have been illegally exacted. Verdict for the
defendant and judgment on the verdict. The
plaintiffs sued out this writ of error.
MR. JUSTICE FIELD delivered the opinion of the
Court.
The plaintiffs are merchants doing business in the
City of New York, and in August, 1882, they
imported a large quantity
Page 124 U. S. 191
of "centrifugal and molasses sugars," the produce
and manufacture of the Island of San Domingo.
These goods were similar in kind to sugars
produced in the Hawaiian Islands, which are
admitted free of duty under the treaty with the King
of those islands and the act of Congress passed to
carry the treaty into effect. They were duly entered
at the custom house at the port of New York, the
plaintiffs claiming that by the treaty with the
Republic of San Domingo, the goods should be
admitted on the same terms -- that is, free of duty --
as similar articles the produce and manufacture of
the Hawaiian Islands. The defendant, who was at
the time collector of the port, refused to allow this
claim, treated the goods as dutiable articles under
the acts of Congress, and exacted duties on them to
the amount of $21,936. The plaintiffs appealed from
the collector's decision to the Secretary of the
7
WEEK TWO CASES
Treasury, by whom the appeal was denied. They
then paid, under protest, the duties exacted, and
brought the present action to recover the amount.
The complaint set forth the facts as to the
importation of the goods; the claim of the plaintiffs
that they should be admitted free of duty, because
like articles from the Hawaiian Islands were thus
admitted; the refusal of the collector to allow the
claim; the appeal from his decision to the Secretary
of the Treasury, and its denial by him, and the
payment, under protest, of the duties exacted, and
concluded with a prayer for judgment for the
amount. The defendant demurred to the complaint,
the demurrer was sustained, and final judgment was
entered in his favor; to review which the case is
brought here.
The treaty with the King of the Hawaiian Islands
provides for the importation into the United States,
free of duty, of various articles, the produce and
manufacture of those islands, in consideration,
among other things, of like exemption from duty on
the importation into that country of sundry specified
articles which are the produce and manufacture of
the United States. 19 Stat. 625. The language of the
first two articles of the treaty, which recite the
reciprocal engagements of the two countries,
declares that they are made in consideration
Page 124 U. S. 192
"of the rights and privileges," and "as an equivalent
therefor," which one concedes to the other.
The plaintiffs rely for a like exemption of the sugars
imported by them from San Domingo upon the
ninth article of the treaty with the Dominican
Republic, which is as follows:
"No higher or other duty shall be imposed on the
importation into the United States of any article, the
growth, produce, or manufacture of the Dominican
Republic, or of her fisheries, and no higher or other
duty shall be imposed on the importation into the
Dominican Republic of any article, the growth,
produce, or manufacture of the United States, or
their fisheries, than are or shall be payable on the
like articles, the growth, produce, or manufacture of
any other foreign country, or its fisheries."
15 Stat. 475.
In Bartram v. Robertson, decided at the last
term, 122 U. S. 116, we held that brown and
unrefined sugars, the produce and manufacture of
the Island of St. Croix, which is part of the
dominions of the King of Denmark, were not
exempt from duty by force of the treaty with that
country, because similar goods from the Hawaiian
Islands were thus exempt. The first article of the
treaty with Denmark provided that the contracting
parties should not grant "any particular favor" to
other nations in respect to commerce and navigation
which should not immediately become common to
the other party, who should "enjoy the same freely
if the concession were freely made, and upon
allowing the same compensation if the concession
were conditional." 11 Stat. 719. The fourth article
provided that no "higher or other duties" should be
imposed by either party on the importation of any
article which is its produce or manufacture into the
country of the other party than is payable on like
articles, being the produce or manufacture of any
other foreign country. And we held in the case
mentioned that
"Those stipulations, even if conceded to be self-
executing by the way of a proviso or exception to
the general law imposing the duties, do not cover
concessions like those made to the Hawaiian Islands
for a valuable consideration. They were pledges of
the two contracting parties, the United States and
the King of
Page 124 U. S. 193
Denmark, to each other that, in the imposition of
duties on goods imported into one of the countries
which were the produce or manufacture of the
other, there should be no discrimination against
them in favor of goods of like character imported
from any other country. They imposed an obligation
upon both countries to avoid hostile legislation in
that respect, but they were not intended to interfere
with special arrangements with other countries
founded upon a concession of special privileges."
The counsel for the plaintiffs meet this position by
pointing to the omission in the treaty with the
Republic of San Domingo of the provision as to free
concessions, and concessions upon compensation,
contending that the omission precludes any
concession, in respect of commerce and navigation,
by our government to another country without that
concession's being at once extended to San
Domingo. We do not think that the absence of this
provision changes the obligations of the United
States. The ninth article of the treaty with that
republic, in the clause quoted, is substantially like
the fourth article in the treaty with the King of
Denmark, and as we said of the latter, we may say
of the former -- that it is a pledge of the contracting
parties that there shall be no discriminating
legislation, against the importation of articles which
are the growth, produce, or manufacture of their
respective countries, in favor of articles of like
character imported from any other country. It has no
greater extent. It was never designed to prevent
special concessions, upon sufficient considerations,
touching the importation of specific articles into the
country of the other. It would require the clearest
language to justify a conclusion that our
government intended to preclude itself from such
engagements with other countries which might in
the future be of the highest importance to its
interests.
8
WEEK TWO CASES
But independently of considerations of this nature,
there is another and complete answer to the
pretensions of the plaintiffs. The act of Congress
under which the duties were collected authorized
their exaction. It is of general application, making
no exception in favor of goods of any country. It
was passed
Page 124 U. S. 194
after the treaty with the Dominican Republic, and, if
there be any conflict between the stipulations of the
treaty and the requirements of the law, the latter
must control. A treaty is primarily a contract
between two or more independent nations, and is so
regarded by writers on public law. For the infraction
of its provisions, a remedy must be sought by the
injured party through reclamations upon the other.
When the stipulations are not self-executing, they
can only be enforced pursuant to legislation to carry
them into effect, and such legislation is as much
subject to modification and repeal by Congress as
legislation upon any other subject. If the treaty
contains stipulations which are self-executing -- that
is, require no legislation to make them operative --
to that extent they have the force and effect of a
legislative enactment. Congress may modify such
provisions so far as they bind the United States, or
supersede them altogether. By the Constitution, a
treaty is placed on the same footing, and made of
like obligation, with an act of legislation. Both are
declared by that instrument to be the supreme law
of the land, and no superior efficacy is given to
either over the other. When the two relate to the
same subject, the courts will always endeavor to
construe them so as to give effect to both, if that can
be done without violating the language of either; but
if the two are inconsistent, the one last in date will
control the other, provided always the stipulation of
the treaty on the subject is self-executing. If the
country with which the treaty is made is dissatisfied
with the action of the legislative department, it may
present its complaint to the executive head of the
government and take such other measures as it may
deem essential for the protection of its interests. The
courts can afford no redress. Whether the
complaining nation has just cause of complaint or
our country was justified in its legislation are not
matters for judicial cognizance. In Taylor v.
Morton, 2 Curtis 454, 459, this subject was very
elaborately considered at the circuit by Mr. Justice
Curtis of this Court, and he held that whether a
treaty with a foreign sovereign had been violated by
him; whether the consideration of a particular
stipulation of the treaty had been voluntarily
withdrawn by
Page 124 U. S. 195
one party so that it was no longer obligatory on the
other; whether the views and acts of a foreign
sovereign had given just occasion to the legislative
department of our government to withhold the
execution of a promise contained in a treaty, or to
act in direct contravention of such promise were not
judicial questions; that the power to determine these
matters had not been confided to the judiciary,
which has no suitable means to exercise it, but to
the executive and legislative departments of our
government, and that they belong to diplomacy and
legislation, and not to the administration of the
laws. And he justly observed as a necessary
consequence of these views that if the power to
determine these matters is vested in Congress, it is
wholly immaterial to inquire whether by the act
assailed it has departed from the treaty or not, or
whether such departure was by accident or design,
and if the latter, whether the reasons were good or
bad.
In these views we fully concur. It follows, therefore,
that when a law is clear in its provisions, its validity
cannot be assailed before the courts for want of
conformity to stipulations of a previous treaty not
already executed. Considerations of that character
belong to another department of the government.
The duty of the courts is to construe and give effect
to the latest expression of the sovereign will.
In Head Money Cases, 112 U. S. 580, it was
objected to an act of Congress that it violated
provisions contained in treaties with foreign
nations, but the Court replied that so far as the
provisions of the act were in conflict with any
treaty, they must prevail in all the courts of the
country, and after a full and elaborate consideration
of the subject it held that
"so far as a treaty made by the United States with
any foreign nation can be the subject of judicial
cognizance in the courts of this country, it is subject
to such acts as Congress may pass for its
enforcement, modification, or repeal."
Judgment affirmed.
CASE BRIEF
Whitney v. Robertson, 124 U.S. 190, 8 S. Ct. 456, 31 L. Ed. 386,
1888 U.S. LEXIS 1852 (U.S. Jan. 9, 1888)
Brief Fact Summary.
Facts. The claim which Whitney (P) brought before the court was
that a treaty between the U.S and the Dominican Republic
guaranteed that no higher duty would be assessed on goods from
the Dominican Republic than was assessed on goods from any
other country and that duties had been wrongfully assessed on his
sugar imports.
The claim which Whitney (P) brought before the court was that a
treaty between the U.S and the Dominican Republic guaranteed
that no higher duty would be assessed on goods from the
Dominican Republic than was assessed on goods from any other
country and that duties had been wrongfully assessed on his sugar
imports.
Issue. Where a treaty and an act of legislation conflict, will the one
last in date control?
9
WEEK TWO CASES

Synopsis of Rule of Law. YES. Where a treaty and an act of o Old constitution restored and elections were
legislation conflict, the one last in date will control.
held.
CASE BRIEF
Tinoco Claims Arbitration (Great Britain v. o August 22, 1922, restored government passed
Costa Rica) case brief Acts nullifying the currency laws it had made
Tinoco Claims Arbitration (Great Britain v. Costa Rica)
o Consequence: Invalidated all transactions
(1923) 1 R.I.A.A. 369
involved
Procedural History:
Arbitration of contract repudiation.
o The restored government is a signatory of the
Overview:
Great Britain (P) claimed that the former government of Costa Rica (D), the treaty of arbitration.
Tinoco regime, had granted oil concessions to a British company that had to be
honored by the present regime. The Tinoco regime had seized power in Costa  The Claim:
Rica by coup. Great Britain (P) and the United States never recognized the
Tinoco regime. When the Tinoco regime fell, the restored government nullified o Brought by Great Britain on behalf of two British
all Tinoco contracts, including an oil concession to a British company. Great
Britain (P) claimed that the Tinoco government was the only government in
existence at the time the contract was signed and its acts could not be
Corporations:
repudiated. Costa Rica (D) claimed that Great Britain (P) was estopped from
enforcing the contract by its nonrecognition of the Tinoco regime. The matter  Royal Bank of Canada
was sent for arbitration.
 Central Costa Rica Petroleum Company
Issue:
Does nonrecognition of a new government by other governments destroy the de o Royal Bank of Canada claimed:
facto status of the government?

Rule:
 Banco Internacional of Costa Rica and
-A government that establishes itself and maintains a peaceful de facto
administration need not to conform to previous constitution and nonrecognition the Government of Costa Rica are
of the govt. by other govt.’s does not destroy the de facto status of the govt.
indebted to it proven by the holding of
Analysis:
The arbitrator found there was no estoppel. The evidence of nonrecognition did 998 1000 colones bills
not outweigh the evidence of the de facto status of the Tinoco regime.
Unrecognized governments thus may have the power to form valid contracts.
o Central Costa Rica Petroleum Company [CCRPC]
Outcome:
No. A government that establishes itself and maintains a peaceful de facto claimed:
administration need not conform to a previous constitution and nonrecognition
of the govern ment by other governments does not destroy the de facto status  It owns the rights to explore and
of the government. Great Britain's (P) nonrecognition of the Tinoco regime did
not dispute the de facto existence of that regime. There was no estoppel since exploit petroleum reserves in Costa
the successor government had not been led by British nonrecognition to change
its position.
Rica
CASE BRIEF 2  This is based on a grant issued by
The Tinoco Arbitration Tinoco
(1932-1934) 2 Annual Digest of Public International Law  The Defense:
Cases 341
 Background: o Great Britain:
o 1917 - Government of Costa Rica [President  On behalf of its nationals, legislation
Alfredo Gonzales] overthrown by Federico passed invalid
Tinoco.  Restored g’ment should recognize the
o Tinoco assumed power & established new concessions given to CCRPC and the
constitution validity of Tinoco’s currency held by the
o During his tenure, he: Royal Bank of Canada
 Granted certain concession to search  During the period in question, the
for oil to a British company Tinoco Government had been the de
 Passed legislation issuing certain new facto and de jure government2
currencies, and British banks [in the  Supported by the fact that the
course of business] became holders of government was not opposed in any
much of this currency significant manner
o 1919 - Tinoco retired, left the country –
Government fall. 2
UK always refused to recognize the Tinoco g’ment as either de
facto or de jure government. H/ever, they still claim at the
arbitration proceedings that the Tinoco g’ment was in fact a de
facto and de jure government.

1 At page 176 and 379.

10
WEEK TWO CASES
 Thus giving the government legitimacy
 All its acts were valid and its successor
has no right to repudiate[annul] them
o Costa Rica:
 Objected. Claimed that any acts carried
out by the government were void
because the Tinoco regime violated the
Costa Rican constitution.
 Because Great Britain did not recognize
the Tinoco Government as legitimate, it
cannot then turn around and claim
agreements with an illegitimate
government as binding.
 Held:
o Rejected Costa Rica arguments
o While the failure on the part of Great
Britain to recognize Tinoco government was
evidence to be taken into account in
deciding on the status of that government,
it was not decisive as the status of the
government had to be determined in the
light of all evidence
o In fact, the Tinoco g’ment had been a de
facto g’ment during the period of its
existence
 For the two years while in power,
the Tinoco government served its
role in a peaceful environment
 No objections, no revolution and
no power dispute.
o The court then holds that “the Tinoco
government was an actual sovereign
government.”
o The court finds in favor of the Royal Bank of
Canada, but finds the petroleum concession
to be a violation of the 1917 Constitution
(which means Tinoco could have nullified
the agreement as well).
 Courts arguments which is significance to the
aspect of International law:
o Scholarly writing: Dr. John Basset Moore:
“Changes in the government or the
international policy of a state do not as a
rule affect its position in international law.”
o States may change between forms of
government without ceasing to be that
state in the eyes of international law, or in
terms of its international obligations.
o “The principle of the continuity of states” =
“state is bound by engagements entered
into by governments that have ceased to
exist; the restored government is generally
liable for the acts of the usurper.”
© 2009 Khairul Idzwan Kamarudzaman
Faculty of Law, Universiti Teknologi MARA
CASE BRIEF 3
Great Britain v Costa Rica, (1923) 1 RIAA 369
Facts:
Government of Costa Rica was overthrown and the
new government passed a law invalidating all Ks
and made a new Constitution. When this
government fell Great Britain sued Costa Rica for
debts. Costa Rica's new government claims no
responsibility for what the old government did.
Great Britain says that Tinoco (the head of the old
government) was the government de facto and de
jur – Cost Rica says Tinoco wasn’t a government in
international law.
Tinoco contracted a lot of foreign debt while
running Costa Rica, including with Great Britain.
Ratio:
Even an illegal government may bind a state to
international obligations. International law looks to
the State, not the gov entity w/in the state.
→ Caveat: when government in power contrary to
international law, not just domestic law, then
doctrine of state continuity will not generally apply
Analysis:
Tinoco was a sovereign government. Even though
some sates did not recognize it – that cannot
outweigh the evidence disclosed that de facto it was
a government.
The question is not if the government abides by a
constitution but is: Has it established itself in such a
way that all w/in the its influence recognize its
11
WEEK TWO CASES
control, and that there is no opposing force
assuming to be a gov in its place
As long a it is the effective government of the state
– it is the government of the state. Debts owed are
not owed by the government of the day but between
the state – the only legal entity that is relevant is the
state.
Holding:
Great Britain was able to sustain a claim against
Costa Rica because the Ks were made with Costa
Rica not Tinoco.
UPRIGHT v. MERCURY BUS.
MACH. CO.
13 A.D.2d 36 (1961)
Walter Upright, Appellant, v. Mercury Business
Machines Co., Inc., Respondent
Appellate Division of the Supreme Court of the
State of New York, First Department.
April 11, 1961.
Attorney(s) appearing for the Case
David W. Kahn for appellant.
Kenneth Simon of counsel (Taylor, Scoll & Simon,
attorneys), for respondent.
RABIN, STEVENS and EAGER, JJ., concur with
BREITEL, J. P.; STEUER, J., concurs in result in
opinion.
[13 A.D.2d 37]
BREITEL, J. P.
Plaintiff, an individual, sues as the assignee of a
trade acceptance drawn on and accepted by
defendant in payment for business typewriters sold
and delivered* to it by a foreign corporation. The
trade acceptance is in the amount of $27,307.45 and
was assigned to plaintiff after dishonor by
defendant.
Involved on this appeal is only the legal sufficiency
of the first affirmative defense. It alleges that the
foreign corporation is the creature of the East
German Government, a government not recognized
by the United States. It alleges, moreover, that such
corporation is an enterprise controlled by and that it
is an arm and instrument of such government.
[13 A.D.2d 38]
On motion addressed to its sufficiency Special
Term sustained the defense. For the reasons that
follow the defense should have been stricken as
legally insufficient pursuant to subdivision 6 of rule
109 of the Rules of Civil Practice.
A foreign government, although not recognized by
the political arm of the United States Government,
may nevertheless have de facto existence which is
juridically cognizable. The acts of such a de
facto government may affect private rights and
obligations arising either as a result of activity in, or
with persons or corporations within, the territory
controlled by such de facto government. This is
traditional law (Russian Reinsurance Co. v.
Stoddard, 240 N.Y. 149; Salimoff & Co. v.
Standard Oil Co., 262 N.Y. 220; Texas v. White, 74
U.S. 700, 733, overruled in part Morgan v. United
States, 113 U.S. 476, 496; cf. United States v. Rice,
4 Wheat. [17 U. S.] 246, involving the effect of
enemy occupation of United States territory; 1
Hyde, International Law [2d rev. ed., 1945], pp.
195-197; 48 C. J. S., International Law, § 5, pp. 8-
10).
In the Russian Reinsurance Co. case, LEHMAN, J.,
later Chief Judge, summarized the principles (p.
158): "The fall of one governmental establishment
and the substitution of another governmental
establishment which actually governs; which is able
to enforce its claims by military force and is obeyed
by the people over whom it rules, must profoundly
affect all the acts and duties, all the relations of
those who live within the territory over which the
new establishment exercises rule. Its rule may be
without lawful foundation; but lawful or unlawful,
its existence is a fact and that fact cannot be
destroyed by juridical concepts. The State
Department determines whether it will recognize its
existence as lawful, and until the State Department
has recognized the new establishment, the court
may not pass upon its legitimacy or ascribe to its
decrees all the effect which inheres in the laws or
orders of a sovereign. The State Department
determines only that question. It cannot determine
how far the private rights and obligations of
individuals are affected by acts of a body not
sovereign or with which our government will have
no dealings. That question does not concern our
foreign relations. It is not a political question, but a
judicial question. The courts in considering that
question assume as a premise that until recognition
these acts are not in full sense law. Their conclusion
must depend upon whether these have nevertheless
had such an actual effect that they may not be
disregarded. In such case we deal with result rather
than cause. We do not pass upon what such an
unrecognized governmental authority may do, or
upon the right or wrong of what
[13 A.D.2d 39]
it has done; we consider the effect upon others of
that which has been done, primarily from the point
of view of fact rather than of theory."
So, too, only limited effect is given to the fact that
the political arm has not recognized a foreign
government. Realistically, the courts apprehend that
political nonrecognition may serve only narrow
purposes. While the judicial arm obligates itself to
follow the suggestions of the political arm in
effecting such narrow purposes, nevertheless, it will
12
WEEK TWO CASES
not exaggerate or compound the consequences
required by such narrow purposes in construing
rights and obligations affected by the acts of
unrecognized governments (Sokoloff v. National
City Bank of N. Y., 239 N.Y. 158; Salimoff & Co. v.
Standard Oil Co., supra). Thus, in Sokoloff v.
National City Bank of N. Y., CARDOZO, J., later
Chief Judge, said (p. 165): "Juridically, a
government that is unrecognized may be viewed as
no government at all, if the power withholding
recognition chooses thus to view it. In practice,
however, since juridical conceptions are seldom, if
ever, carried to the limit of their logic, the
equivalence is not absolute, but is subject to self-
imposed limitations of common sense and fairness."
The principles last discussed are the same as those
presented by so authoritative a compiler as
Hackworth as governing the effect of
nonrecognition (1 Hackworth, Digest of
International Law, p. 364 et seq.).
Applying these principles, it is insufficient for
defendant merely to allege the nonrecognition of the
East German Government and that plaintiff's
assignor was organized by and is an arm and
instrumentality of such unrecognized East German
Government. The lack of jural status for such
government or its creature corporation is not
determinative of whether transactions with it will be
denied enforcement in American courts, so long as
the government is not the suitor.*(Actually, on the
present pleadings no issue is raised that plaintiff
assignee is that government, or is an arm of that
government, or that the assignment to him of the
trade acceptance is invalid or does not represent a
genuine transfer.)
The extent to which courts will recognize the legal
effect of transactions within the territory of an
unrecognized government, even where the
transaction is materially affected by the action of
such government, has been dramatically
demonstrated. In Salimoff & Co. v. Standard Oil
Co. (262 N.Y. 220, supra) it
[13 A.D.2d 40]
was held that one who took property by purchase
from the unrecognized Russian government which
had confiscated such property from its rightful
owners nevertheless had good title as against the
onetime lawful owners.
Indeed, in the Salimoff case it was said (p. 227):
"Such conduct [confiscation of property] may lead
to governmental refusal to recognize Russia as a
country with which the United States may have
diplomatic dealings. The confiscation is none the
less effective. The government may be
objectionable in a political sense. It is not
unrecognizable as a real governmental power which
can give title to property within its limits."
Consequently, Luther v. Sagor & Co. ([1921] 1 K.
B. 456, revd. on other grounds 3 K. B. 532), cited
by defendant, was not viewed as authoritative (to
the same effect, see, Banque de France v. Equitable
Trust Co., 33 F.2d 202; cf. Sokoloff v. National City
Bank of N. Y., 239 N.Y. 158, 164, supra). On the
contrary, in both the Salimoff and Banque de
France cases it was held that confiscatory decrees
of an unrecognized Russian government might, in
proper circumstances, be deemed valid and
effective in altering private rights. A fortiori, the
internal acts of the East German Government,
insofar as they concern the parties here, should be
given effect generally. At least, this is so in the
absence of allegation that defendant's property was
expropriated by wrongful governmental force, or
that for other reasons the transaction in suit or that
directly underlying it violates public or national
policy.
This case does not involve the issues, tendered by
defendant in its argument, of jural status of the East
German corporation, or of its incapacity to transfer
title, or even of its capacity to sue in our courts.
These have been long recognized as issues to be
resolved by reference to the actual facts — the
realities of life — occurring in the territory
controlled by a de facto government, unless, of
course, the contemplated juridical consequences of
such "facts" can be properly related as inimical to
the aims and purposes of our public or national
policy (Russian Reinsurance Co. v.
Stoddard, supra; Petrogradsky M. K. Bank v.
National City Bank of N. Y., 253 N.Y. 23; Moscow
Fire Ins. Co. v. Bank of New York & Trust Co., 280
N.Y. 286, affd. by equally divided court 309 U.S.
624, overruled in United States v. Pink, 315 U.S.
203; Thorington v. Smith, 75 U.S. 1). Even the
power of a rebel government in one of the
Confederate States to create a corporation with
capacity to sue the United States Government was
admitted where such creation was not directly in
furtherance of the rebellion (United States v.
Insurance Cos., 89 U.S. 99).
[13 A.D.2d 41]
It is a false notion, if it prevail anywhere, that an
unrecognized government is always an evil thing
and all that occurs within its governmental purview
are always evil works. There are many things which
may occur within the purview of an unrecognized
government which are not evil and which will be
given customary legal significance in the courts of
nations which do not recognize the prevailing de
facto government. In a time in which governments
with established control over territories may be
denied recognition for many reasons, it does not
mean that the denizens of such territories or the
corporate creatures of such powers do not have the
juridical capacity to trade, transfer title, or collect
13
WEEK TWO CASES
the price for the merchandise they sell to outsiders,
even in the courts of nonrecognizing nations
(cf. Sokoloff v. National City Bank of N. Y., 239
N.Y. 158, 165-166, supra).
Of course, nonrecognition is a material fact but only
a preliminary one. The proper conclusion will
depend upon factors in addition to that of
nonrecognition. Such is still the case even though
an entity involved in the transaction be an arm or
instrumentality of the unrecognized government.
Thus, in order to exculpate defendant from payment
for the merchandise it has received, it would have to
allege and prove that the sale upon which the trade
acceptance was based, or that the negotiation of the
trade acceptance itself, was in violation of public or
national policy. Such a defense would constitute
one in the nature of illegality and if established
would, or at least might, render all that ensued from
the infected transaction void and unenforcible.
Defendant buyer cannot escape liability merely by
alleging and proving that it dealt with a corporation
created by and functioning as the arm of and
instrumentality of an unrecognized government.
Put more concretely: The public policy which
denies juridical recognition to the East German
Government is determined by the refusal of the
political arm to recognize it. That means the East
German Government cannot sue in our courts. The
question whether its corporate instrumentality can
sue is not so clear. Perhaps it could sue. But
another, not otherwise lacking in capacity to sue,
may, by way of transfer or other mesne assignment,
sue on the underlying transaction, unless such
transaction itself or the assignment is shown to
violate the national or public policy. In order for
such transaction or the assignment to violate
national or public policy, it must be shown either to
violate our laws or some definite policy. If the
national government does not administratively
forbid, or if it facilitates, the purchase and delivery
into this country of East German
[13 A.D.2d 42]
typewriters, and no law forbids it, then defendant
buyer will be hard put to show the "illegality" of the
underlying transaction, or the assignment, and
thereby avoid payment of the price for such
merchandise.
Moreover, the status of the East German territory is
that of territory, once belligerent, but now occupied
by a wartime ally, the Soviet Union, with the
consent of the other allies. Nonrecognition, in the
past, of the East German Government simply meant
that, pending a reunification plan and free secret
elections, the State Department refused to recognize
the displacement of the Soviet Union as the power
responsible for the territory and for the conduct of
affairs there.
All of this explains why defendant's pleading should
be required to depend on a sound theory. The effect
of nonrecognition, used by defendant as some sort
of umbrella to protect it from liability is not the
answer.
Accordingly, the order of Special Term should be
reversed, on the law, and the motion to strike the
first affirmative defense granted, with $20 costs to
plaintiff-appellant, with leave, however, to
defendant if it is so advised, to serve an amended
answer within 20 days containing an affirmative
defense asserting a violation of public policy with
respect either to the underlying sale or the transfer
of the trade acceptance in accordance with the
views expressed in this opinion, or depending on
any other theory not now passed upon.
STEUER, J. (concurring).
I concur in the result. As pointed out in the learned
majority opinion, an unrecognized government
lacks the capacity to sue. So does a branch or arm of
that government, whether it be a corporation or any
other entity. Concededly also, there is an infinite
variety of relationship between governments and
their corporate creations. By a branch of the
government is meant an entity that performs
governmental functions acting in its particular
sphere as the alter ego of the government. Whether
a particular corporation falls into that classification
is a political rather than a juridical question, and the
determination of the State Department on that
question is conclusive.
As a matter of pleading, it is a sufficient allegation
that the corporation in question, the plaintiff's
assignor, is a branch of an unrecognized
government. It is not necessary to plead that our
State Department has found that allowing it access
to the courts is inimical to our policy. Such would
have to be the proof, but, at this moment, we are not
concerned with the proof. So lacking the factor of
the assignment, the pleading would be sufficient.
[13 A.D.2d 43]
The assignment presents several questions which do
not call for decision at this point. Conceivably, a
naked assignment might leave the assignee in a
different position from that he would occupy if the
assignment were a transfer of a bona fide interest in
the claim. A different public policy might determine
the result and different legal principles might well
ensue. The pleading ignores the assignment. To that
extent it does not meet the issue tendered by the
complaint, and the defense, to that extent, is
insufficient.
Order entered on September 16, 1960, denying
plaintiff's motion to strike out the first defense
pleaded in the defendant's answer, reversed, on the
law, with $20 costs and disbursements to the
appellant, and the motion to strike the first
affirmative defense granted, with $10 costs, with
14
WEEK TWO CASES

commercial transaction, it would be inequitable to permit defendant to

leave, however, to defendant if it is so advised, to
serve an amended answer within 20 days after
service of a copy of the order entered herein, with
notice of entry, containing an affirmative defense
asserting a violation of public policy with respect
either to the underlying sale or the transfer of the
trade acceptance in accordance with the views
retain the fruits thereof without compensation. The point made by
defendant that it would not be able to enforce a proposed counterclaim
against plaintiff's assignor in an East German court is not well taken. It does
have an opportunity to press any claim it may deem advisable in connection
with the subject transaction in this court.
However, overriding foreign policy considerations may make necessary a
denial of access to our courts in the event it is determined that the
defendant dealt in some form with the unrecognized Government of the
German Democratic Republic.

expressed in the opinion of this court filed herein, or
depending on any other theory not now passed
upon.
FootNotes
* It was stated in the argument, without
contradiction, that the merchandise was shipped
openly and passed regularly through United States
Customs.
* For, if the unrecognized government were allowed
to sue, this would be deemed recognition of jural
status (Russian Republic v. Cibrario, 235 N.Y.
255). Note that the corporation perhaps could sue
(see United States v. Insurance Cos., 89 U.S.
99, infra).
If plaintiff's assignor is as a matter of fact wholly owned by the so-called
German Democratic Republic, it would, by that fact, have no capacity to sue
in our court, regardless of its organization. Whether this be so still remains
to be determined, since the proof submitted on this issue is inconclusive.
Plaintiff's contention that a claim of incapacity to sue cannot be set up
against him, despite the refusal of recognition, in that he is an American
citizen and a resident of the State of New York, is without merit. He can
have no greater rights than his assignor.
The subject matter of the contentions urged in support of dismissal under
both subdivisions 1 and 2 of rule 107 of the Rules of Civil Practice appears
to be identical. It is not that the court does not have jurisdiction of the
subject matter, but the question is whether the assignor has capacity to sue
and the court will entertain the action.
It appears from defendant's letter of December 9, 1959, that the sole issue
tendered to the Official Referee was the state of organization of the assignor
corporation. It is now agreed that it is an East German corporation.
Accordingly, the motion to dismiss is denied with leave to defendant to raise
the matter by defense in its answer, unless the parties agree to a prior trial
of the issues as herein stated, in which event an order will be settled.

Disposition
CASE BRIEF
WALTER UPRIGHT v. MERCURY BUSINESS
Accordingly, the motion to dismiss is denied with leave to defendant to raise
MACHINES CO. (05/05/60) the matter by defense in its answer, unless the parties agree to a prior trial
of the issues as herein stated, in which event an order will be settled.
SUPREME COURT OF NEW YORK, SPECIAL TERM, NEW YORK
COUNTY 1960.NY.43270 <http://www.versuslaw.com>; 203 N.Y.S.2d 288;
24 Misc. 2d 571 May 5, 1960 WALTER UPRIGHT,
PLAINTIFF,v.MERCURY BUSINESS MACHINES CO., INC.,
DEFENDANT David W. Kahn for plaintiff. Taylor, Scoll & Simon (Kenneth
Simon of counsel), for defendant. Thomas A. Aurelio, J. Author: Aurelio

Thomas A. Aurelio, J.

Author: Aurelio

This is an action brought by a plaintiff assignee on a trade acceptance

drawn by its assignor on itself and accepted by defendant, representing a
balance due for machinery sold to defendant. The complaint alleges that the
assignor was a corporation organized and existing under the laws of West
Germany, having its principal place of business in West Berlin, Republic of
West Germany. The motion at bar seeks an order under subdivisions 1 and
2 of rule 107 of the Rules of Civil Practice dismissing the complaint on the
grounds that the court does not have jurisdiction of the subject matter of
the action and/or plaintiff does not have legal capacity to sue.

The basis of the motion is a contention that the plaintiff's assignor is a

State-controlled enterprise of the German Democratic Republic. In support
thereof, the defendant submits a copy of a communication from the Chief of
the Economic Affairs section of the United States Mission in Berlin to the
Department of State. Plaintiff's affidavits in opposition state that it has been
advised by its assignor that it was founded by residents of the German
Democratic Republic under the Limited Liabilities Company Law of 1892 and
its founding is permitted in the German Democratic Republic; that it has no
office in West Berlin but has concluded contracts with firms in that city and
in West Germany; that the negotiations with defendant were carried on in
West Germany. The matter was sent to an Official Referee to hear and
report with his recommendation on this issue.

It has now been conceded that the said assignor was not a West German
corporation but rather an East German corporation. Upon such concession
the court cannot recognize the existence of a juridical creature of a
government we do not recognize. The court will take judicial notice that the
German Democratic Republic is not recognized by our Government.
However, even though plaintiff's assignor would have no right to sue in this
court as a corporation since the recognition of that legal entity is barred by
the foreign policy of the United States Government, nevertheless it cannot
be denied that some organization or group of persons does exist and
entered into a commercial transaction with the defendant. If it were clear
that this group of people consisted of private citizens unconnected with the
unrecognized government, the court is of the opinion that no further
question would exist. The foreign policy of the United States Government
does not require us to deny that there are people residing in and doing
business in a certain geographical area. No prohibition or restriction seems
to have been imposed on trading in the items which are the basis of this
cause of action. Where, as here, it has received the benefits of the
15