Under the treaty between the United States and Cuba of December
11, 1902, and the Act of Congress of December 17, 1903, imports
from Cuba were not entitled to reduction of duties imposed by the
tariff Act of July 24, 1897, until December 27, 1903, the date
proclaimed by the President of the United States and the President
of Cuba for the commencement of the operation of the treaty.
After the treaty was amended by the Senate and the amendment
accepted by Cuba, the time of its going into effect was to be fixed
by act of Congress, and not as originally fixed by the treaty ten
days after the exchange of ratifications.
Page 202 U. S. 564
There is a presumption against retrospective legislation, and
words in a statute will not be construed as having such effect
unless they clearly can have no other effect and the legislative
intent cannot otherwise be satisfied, and in this respect the use
in the statute of the future tense must be given weight..
The question in the case is whether certain sugars which were
imported between the twelfth of June and the twenty-eighth of
September, 1903, were chargeable with full duties under the tariff
Act of July 24, 1897, or were entitled to twenty percent reduction
of duties prescribed by that act, under the treaty between the
United States and Cuba of the date December 11, 1902, and an act of
Congress of December 17, 1903. The answer to the question depends
upon when the treaty went into effect -- whether upon the tenth of
April, 1903, or the twenty-seventh of December, 1903. The appellant
contends for the former and the appellee for the latter date.
Duties were assessed under the act of 1897 without reduction.
Protests were filed and an appeal taken to the board of appraisers,
who sustained the collector. The decision of the board was reversed
by the circuit court. The treaty provided, 33 Stat. 2136, 2142,
among other things, as follows:
"The President of the United States of America . . . and the
President of the Republic of Cuba . . . have, in consideration of
and in compensation for the respective concessions and engagements
made by each to the other as hereinafter recited, agreed, and do
hereby agree, upon the following articles for the regulation and
government of their reciprocal trade, namely:"
"
* * * *"
"
Article II"
"During the term of this convention, all articles of merchandise
not included in the foregoing Article I, and being the product of
the soil or industry of the Republic of Cuba, imported into the
United States, shall be admitted at a reduction of twenty percentum
of the rates of duty thereon, as provided by the tariff act of the
United States approved July 24, 1897, or
Page 202 U. S. 565
as may be provided by any tariff law of the United States
subsequently enacted."
Article XI was as follows:
"The present convention shall be ratified by the appropriate
authorities of the respective countries, and the ratifications
shall be exchanged at Washington, District of Columbia, United
States of America, as soon as may be before the thirty-first day of
January, 1903,
and the convention shall go into effect on the
tenth day after the exchange of ratifications, and shall
continue in force for the term of five (5) years from date of going
into effect, and from year to year thereafter until the expiration
of one year from the day when either of the contracting parties
shall give notice to the other of its intention to terminate the
same."
By supplemental treaty signed January 26, 1903, 33 Stat. 2145,
it was provided that "the respective ratifications of the said
convention shall be exchanged as soon as possible, and within two
months from January 31, 1903."
March 19, 1903, the Senate added the following amendment at the
end of Article XI: "This convention shall not take effect until the
same shall have been approved by the Congress."
On March 31, 1903, ratifications were exchanged. At this date,
Congress was not in session, but was convened in special session
November 9, 1903, and passed on December 17, 1903, 33 Stat. 3, an
act entitled: "An Act to Carry into Effect a Convention between the
United States and the Republic of Cuba, Signed on the eleventh Day
of December in the Year 1902." Section 1 provides as follows:
"That whenever the President of the United States shall receive
satisfactory evidence that the Republic of Cuba has made provision
to give full effect to the articles of the convention between the
United States and the Republic of Cuba, signed on the eleventh day
of December, in the year nineteen hundred and two, he is hereby
authorized to issue his proclamation declaring that he has received
such evidence,
and thereupon, on the tenth day after exchange
of ratifications of such convention between
Page 202 U. S. 566
the United States and the Republic of Cuba,
and so long as
the said convention shall remain in force, all articles of
merchandise being the product of the soil or industry of the
Republic of Cuba, which
are now imported into the United
States free of duty,
shall continue to be so admitted free
of duty, and all other articles of merchandise being the product of
the soil or industry of the Republic of Cuba imported into the
United States
shall be admitted at a reduction of twenty
percentum of the rates of duty thereon, as provided by the tariff
act of the United States approved July twenty-four, eighteen
hundred and ninety-seven, or as may be provided by any tariff law
of the United States subsequently enacted. The rates of duty herein
granted by the United States to the Republic of Cuba are, and shall
continue,
during the term of said convention, preferential
in respect to all like imports from other countries:
Provided, That, while said convention is in force, no
sugar imported from the Republic of Cuba and being the product of
the soil or industry of the Republic of Cuba shall be admitted into
the United States at a reduction of duty greater than twenty
percentum of the rates of duty thereon, as provided by the tariff
act of the United States approved July twenty-fourth, eighteen
hundred and ninety-seven, and no sugar the product of any other
foreign country shall be admitted by treaty or convention into the
United States while this convention is in force at a lower rate of
duty than that provided by the tariff act of the United States
approved July twenty-fourth, eighteen hundred and ninety-seven:
And provided further, That nothing herein contained shall
be held or construed as an admission on the part of the House of
Representatives that customs duties can be changed otherwise than
by an act of Congress originating in said House."
The same day (December 17, 1903), the President issued his
proclamation, 33 Stat. 2136, which, after setting forth the treaty
and the act of Congress, and reciting the above facts, together
with the fact that ratifications of said convention had been
exchanged on March 31, 1903, declared:
Page 202 U. S. 567
"And whereas satisfactory evidence has been received by the
President of the United States that the Republic of Cuba has made
provision to give full effect to the articles of said
convention;"
"Now therefore be it known that I, Theodore Roosevelt, President
of the United States of America, in conformity with the said act of
Congress, do hereby declare and proclaim the said convention, as
amended by the Senate of the United States, to be in effect
on
the tenth day from the date of this, my proclamation. "
Page 202 U. S. 576
After stating the case as above, MR. JUSTICE McKENNA delivered
the opinion of the Court.
The treaty as drafted and presented to the Senate provided for
an exchange of ratifications at Washington as soon as might be
before the thirty-first day of January, 1903, and should "go into
effect on the tenth day after the exchange of ratifications." A
supplemental convention became necessary, and an exchange of
ratifications was provided to be "as soon as possible and within
two months from January 31, 1903." But, subsequent to that date,
to-wit, March 19, 1903, the Senate added the amendment: "This
convention shall not take effect until the same shall have been
approved by the Congress." Between the treaty, therefore, and the
amendment, there was an emphatic difference. The date at which the
instrument should go into effect was changed. It cannot be said
that the treaty provision related to time and the amendment to
sanction merely, and adopted the time of the treaty. To do this
would be to interpret the words of the treaty one way and the same
words in the amendment another way. We start, then, with the
proposition that not the treaty, but the act of Congress, was to
fix the date that the treaty should take effect. What date Congress
fixed is the question to be considered. It was certainly competent
for Congress (with the consent of Cuba)
Page 202 U. S. 577
to have given the treaty retrospective, immediate, or
prospective operation. Which did Congress do? And, in reply, we are
to remember there is a presumption against retrospective operation,
and we have said that words in a statute ought not to have such
operation
"unless they are so clear, strong, and imperative that no other
meaning can be annexed to them, or unless the intention of the
legislature cannot be otherwise satisfied."
United States v. Burr, 159 U. S.
78. On the other hand, it must be admitted that there
are words in the act of Congress which, if not of themselves, yet,
in connection with events, may be said to look to a retrospective
operation. It is not, however, an unusual judicial problem to have
to seek the meaning of a law expressed in words not doubtful of
themselves, but made so by circumstances or the objects to which
they come to be applied.
Both the treaty and the act of Congress concern tariff duties,
and "the usual course in tariff legislation," we have said,
"has been, inasmuch as some time is necessary to enable
importers and business men to act understandingly, to fix a future
date at which the statutes are to become operative."
United States v. Burr, supra. And these remarks have
application here. The treaty, it may be admitted, was intended as a
beneficial concession to Cuba. But conditions in the United States
were also to be considered, and we cannot assume that this would
have been overlooked by Congress when legislating. It is true, as
urged by appellant, that the Act of December 17 deals entirely with
importations from Cuba, but it is those which would have the most
disturbing effect, and on account of which business in like
products would have to be accommodated. These, as well as the
considerations urged by the appellant, must be kept in mind in
seeking the meaning of Congress, and we repeat that, under the
Senate amendment, it is the meaning of Congress, not the meaning of
the convention independent of that of Congress, we are to
ascertain. It was open to Cuba to reject the amendment; it was open
to Cuba to reject the legislation. If she chose to accept both,
they became her contracts.
Page 202 U. S. 578
Turning to the Act of December 17, we find it expressed in the
simple future tense, and this must be given weight.
United
States v. Goldenberg, 168 U. S. 95,
168 U. S. 102.
So far as the text of the act itself is concerned, all of its parts
accord; all of its provisions are prospective but one. That
pertained to the then present, the date of the act. It provided
that all products which were imported free should continue to be
admitted free. The provision is "all articles . . . which are
now imported . . . free of duty
shall continue to
be so admitted. . . ." This accords with and reinforces the
prospective provisions, and was apparently used with deliberate and
provident intention, making the act provide for the present and
future, excluding the past, certainly not expressing it. Passing
from the text of the act, an element of confusion appears.
Ratifications had been exchanged between the United States and Cuba
on March 31, 1903. The text of the act provides
"that, whenever the President . . .
shall receive
satisfactory evidence that the Republic of Cuba has made provision
to give full effect to the article of the convention, . . . he is
hereby authorized to issue his proclamation declaring that he has
received such evidence, and
thereupon, on the tenth day
after exchange of ratifications of such convention, . . .
and
so long as the said convention shall remain in force, all
articles of merchandise being the product . . . of the Republic of
Cuba, which are now imported . . . free of duty shall continue to
be so admitted free of duty, and all other articles . . . shall be
admitted at a reduction of twenty percent of the rates of duty
thereon as provided by the tariff act of the United States approved
July 24, 1897. . . ."
The words of the act therefore refer manifestly to an event to
occur which seemingly had already occurred, and, upon such event,
it is contended, the treaty, by its own terms and by the act of
Congress took effect; to-wit, "the exchange of ratifications" of
the convention. To this the government replies that Congress, not
being in session at the time, was ignorant that ratifications had
been exchanged, and framed its legislation with the view that some
further provision by Cuba was necessary.
Page 202 U. S. 579
If we may not accept the explanation of Congress' ignorance, it
is not unreasonable to suppose that Congress considered it was
still open to Cuba to accept or reject the treaty, and to make sure
of her acceptance before the treaty should go into effect in the
United States. This view satisfies completely the text of the act.
We cannot suppose that, if Congress intended to give retrospective
operation to the act, it would have used the words that expressed
the contrary. The day at which the treaty should operate was
important, and would necessarily be ever present in mind, and it
was of easy expression. Future time and past time are directly
opposite, and by no inadvertence or intention can we believe or
suppose that Congress, having in mind and purpose the distinction
between the past and the future, should use language that expressed
the one while it meant to provide for the other.
There is another important fact. The treaty was a reciprocal
arrangement, and intended to go into effect coincidentally in the
United States and Cuba. The two nations provided for this. On the
day the President approved the act of Congress, he issued his
proclamation declaring that the treaty should go into effect on the
twenty-seventh day of December. On the seventeenth of December, the
President of Cuba also issued his proclamation, stating that
Congress had approved the treaty in accordance with the
requirements of Article XI and declaring that the treaty should
take effect in Cuba on the day named in the proclamation of the
President of the United States -- December 27, 1903. This
coincident operation is of the very essence of the convention. It
would indeed be anomalous if a treaty which provided the reciprocal
concessions should be in operation in one nation eight months
before it was in operation in the other. And this is not adequately
answered, as appellee answers it, by saying that the President of
Cuba and the President of the United States were both mistaken as
to the date of the operation of the treaty, and their mistake could
not affect the rights of importers. Certainly not if a mistake
could be conceded. But the action of the Presidents is proof
against
Page 202 U. S. 580
the existence of mistakes. It shows the understanding of the
Executives of the two countries, and affords confirmation of the
view that Congress contemplated action subsequent to its
legislation to put the treaty into effect.
The judgment of the Circuit Court is reversed, and the case
remanded with directions to affirm the order of the Board of
General Appraisers.
