CROSS V. HARRISON, 57 U. S. 164 (1853)

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U.S. Supreme Court

Cross v. Harrison, 57 U.S. 16 How. 164 164 (1853)

Cross v. Harrison

57 U.S. (16 How.) 164


In the war with Mexico, the port of San Francisco was conquered by the arms of the United States in the year 1846, and shortly afterwards the United States had military possession of all of Upper California. Early in 1847, the President of the United States, as constitutional commander-in-chief of the army and navy, authorized the military and naval commanders of the United States forces in California to exercise the belligerent rights of a conqueror, and to form a civil and military government for the conquered territory, with power to impose duties on imports and tonnage for the support of such government and of the army, which had the conquest in possession.

This was done, and tonnage and import duties were levied under a war tariff, which had been established by the civil government for that purpose, until official notice was received by the civil and military governor of California, that a treaty of peace had been made with Mexico by which Upper California had been ceded to the United States.

Upon receiving this intelligence the governor directed that import and tonnage duties should thereafter be levied in conformity with such as were to be paid in the other ports of the United States, by the acts of Congress, and for such purpose he appointed the defendant in this suit, collector of the port of San Francisco.

The plaintiffs now seek to recover from him certain tonnage duties and imposts upon foreign merchandise paid by them to the defendant as collector between the 3d of February, 1848, the date of the treaty of peace, and the 13th of November, 1849, when the collector appointed by the President, according to law, entered upon the duties of his office, upon the ground that they had been illegally exacted.

The formation of the civil government in California, when it was done, was the lawful exercise of a belligerent right over a conquered territory. It was the existing government when the territory was ceded to the United States as a conquest, and did not cease as a matter of course or as a consequence of the restoration of peace, and it was rightfully continued after peace was made with Mexico until Congress legislated otherwise, under its constitutional power, to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.

The tonnage duties and duties upon foreign goods imported into San Francisco were legally demanded and lawfully collected by the civil governor whilst the war continued and afterwards from the ratification of the treaty of peace until the revenue system of the United States was put into practical operation in California under the acts of Congress passed for that purpose.

Cross, Hobson & Co., brought an action of assumpsit to recover back from Harrison, moneys paid to him while acting as collector of customs at the port of San Francisco, in California, for tonnage on vessels and duties on merchandise, not of the growth, produce, or manufacture of the United States, imported by the plaintiffs from foreign places into California, and there landed, between February 3, 1848, and November 12, 1849.

The plea was nonassumpsit, and the verdict and judgment were for Harrison, in January, 1852.

The bill of exceptions contained the substance of much testimony

Page 57 U. S. 165

offered by the plaintiff, which it is not necessary to recite, and also the whole of the Senate Document, No. 18, of the first session of the thirty-first Congress. The opinion of the Court contains a statement of the material parts of this evidence.

Page 57 U. S. 181

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