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Mr. Justice White with whom concurred Mr. Justice Shiras and Mr. Justice Mckenna, uniting in the judgment of affirmance.
Mr. Justice Brown, in announcing the judgment of affirmance, has in his opinion stated his reasons for his concurrence in such judgment. In the result I likewise concur. As, however, the reasons which cause me to do so are different from, if not in conflict with, those expressed in that opinion, if its meaning is by me not misconceived, it becomes my duty to state the convictions which control me.
The recovery sought is the amount of duty paid on merchandise which came into the United States from Porto Rico after July 1,1900. The exaction was made in virtue of the act of Congress approved April 12, 1900, entitled "An act temporarily to provide revenue and a civil government for Porto Rico, and for other purposes." (31 Stat. 77.) The right to recover is predicated on the assumption that Porto Rico, by the ratification of the treaty with Spain, became incorporated into the United Slates, and therefore the act of Congress which imposed the duty in question is repugnant to Article I, sec. 8, clause 1, of the Constitution providing that "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be Uniform throughout the United States." Subsidiarily, it is contended that the duty collected was also repugnant to the export and preference clauses of the Constitution. But as the case concerns no duty on goods going from the United States to Porto Rico, this proposition must depend also on the hypothesis that the provisions of the Constitution referred to apply to Porto Rico because that island has been incorporated into the United States. It is hence manifest that this latter contention is involved in the previous one, and need not be separately considered.
The arguments at bar embrace many propositions which seem to me to be irrelevant, or, if relevant, to be so contrary to reason and so in conflict with previous decisions of this court as to cause them to require but a passing notice. To eliminate all controversies of this character, and thus to come to the pivotal contentions which the case involves, let me state and concede the soundness of some principles, referring, in doing so, in the margin to the authorities by which they are sustained, and making such comment on some of them as may to me appear necessary.
First. The government of the United States was born of the Constitution, and all powers which it enjoys or may exercise must be either derived expressly or by implication from that instrument. Even.then, when an act of any department is challenged, because not warranted by the Constitution, the existence of the authority is to be ascertained by determining whether the power has been conferred by the Constitution, either in express terms or by lawful implication, to be drawn from the express authority conferred or deduced as an attribute which legitimately inheres in the nature of the powers given, and which flows from the character of the government established by the Constitution. In other words, whilst confined to its constitutional orbit, the government of the United States is supreme within its lawful sphere.*
Second. Every function of the government being thus derived from the Constitution, it follows that that instrument is everywhere and at all times potential in so far as its provisions are applicable, f
Third. Hence it is that wherever a power is given by the Constitution and there is a limitation imposed on the authority, such restriction operates upon and confines every action on the subject within its constitutional limits.J
Fourth. Consequently it is impossible to conceive that where conditions are brought about to which any particular provision of the Constitution applies its controlling influence may be frustrated by the action of any or all of the departments of the government. Those departments, when discharging, within the limits of their constitutional power, the duties which rest on them, may of course deal with the subjects committed to them in such a way as to cause the matter dealt with to come under the control of provisions of the Constitution which may not have been previously applicable. But this does not conflict with the doctrine just stated, or presuppose that the Consti
*Marbury v. Madison, 1 Cranch, 176 et seq.: Martin r. Hunter, 1 Wheat. 326; New Orleans r. United States, 10 Pet. 662, 736; Geoffroy v. Riggs, 133 U. S. 258, 266; United States v. Gettysburg Electric Ry., 160 U. S. 668. 679, and cases cited.
+ The City of Panama, 101 U. S. 453, 460; Fong Yue Ting v. United States, 149 U. S. 716, 738.
% Monongahela Navigation Company v. United States, 148 U. S. 312, 336; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 479; United States v. Joint Traffic Association, 171 U. S. 571.
tution may or may not he applicable at the election of any agency of the government.
Fifth. The Constitution has undoubtedly conferred on Congress the right to create such municipal organizations as it may deem best for all the territories of the United States whether they have been incorporated or not, to give to the inhabitants as respects the local governments such degree of representation as may be conducive to the public well-being, to deprive such territory of representative government if it is considered just to do so, and to change such local governments at discretion.*
The plenitude of the power of Congress as just stated is conceded by both sides to this controversy. It has been manifest from the earliest days and so many examples are afforded of it that to refer to them seems superfluous. However, there is an instance which exemplifies the exercise of the power substantially in all its forms, in such an apt way that reference is made to it. The instance referred to is the District of Columbia, which has had from the beginning different forms of government conferred upon it by Congress, some largely representative, others only partially so, until, at the present time, the people of the District live under a local government totally devoid of local representation, in the elective sense, administered solely by officers appointed by the President, Congress, in which the District has no representative in effect, acting as the local legislature.
In some adjudged cases the power to locally govern at discretion has been declared to arise as an incident to the right to acquire territory. In others it has been rested upon the clause of section 3, Article IV, of the Constitution, which vests Congress with the power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States, f But this divergence, if not conflict of opinion, does not imply that the authority of Congress to govern the territories is outside of the Constitution, since in either case the right is founded on the Constitution, although referred to different provisions of that instrument.
Whilst, therefore, there is no express or implied limitation on Congress in exercising its power to create local governments for any and all of the territories, by which that body is restrained from the widest latitude of discretion, it does not follow that there may not be inherent, although unexpressed, principles which are the basis of all free
*UnitedStates v. Kagama, 118 U. S. 3T5, 378; Shively v. Bowlby, 152 U. S. 1, 48 fSere v. Pitot, 6 Cranch, 332, 336; McCulloch v. Maryland, 4 Wheat. 316, 421; American Ins. Co. v. Canter, 1 Pet. 511. 542; United States v. Gratiot, 14 Pet. 526, 537; Dred Scott v. Sanford, 19 How. 418; Clinton v. Englebrecht, 13 Wall. 434, 447; Hamilton v. Dillin, 21 Wall. 73, 93; National Bank v. County of Yankton, 101 U. S. 129, 132; The City of Panama, 101 U. S. 453, 457; Murphy v. Ramsey, 114 U. S. 15, 44; United States r. Kagama, 118 U. S. 375, 380: Mormon Church v. United States, 136 U. S. 1, 42; Boyd v. Thayer, 143 U. S. 135, 169.
government which cannot be with impunity transcended.* But this does not suggest that every express limitation of the Constitution which is applicable has not force, but only signifies that even in cases where there is no direct command of the Constitution which applies, there may nevertheless be restrictions of so fundamental a nature that they cannot be transgressed, although not expressed in so many words in the Constitution.
Sixth. As Congress in governing the territories is subject to the Constitution, it results that all the limitations of the Constitution which are applicable to Congress in exercising this authority necessarily limit its power on this subject. It follows also that every provision of the Constitution which is applicable to the territories is also controlling therein. To justify a departure from this elementary principle by a criticism of the opinion of Mr. Chief Justice Taney in Scott v. Sanford, (19 How. 393,) appears to me to be unwarranted. Whatever may be the view entertained of the correctness of the opinion of the court in that case, in so far as it interpreted a particular provision of the Constitution concerning slavery and decided that as so construed it was in force in the territories, this in no way affects the principle which that decision announced, that the applicable provisions of the Constitution were operative. That doctrine was concurred in by the dissenting judges, as the following excerpts demonstrate. Thus Mr. Justice McLean, in the course of his dissenting opinion, said (19 How. 542):
"In organizing the government of a territory, Congress is limited to means appropriate to the attainment of the constitutional object. No powers can be exercised which are prohibited by the Constitution, or which are contrary to its spirit."
Mr. Justice Curtis, also in the dissent expressed by him, said (p. 614):
"If, then, this clause does contain a power to legislate respecting the territory, what are the limits of that power?
"To this I answer that, in common with all the other legislative powers of Congress, it finds limits in the express prohibitions on Congress not to do certain tilings; that, in the exercise of the legislative power, Congress cannot pass an ex post facto law or bill of attainder; and so in respect to each of the other prohibitions contained in the Constitution."
Seventh. In the case of the territories, as in every other instance, when a provision of the Constitution is invoked, the question which arises is, not whether the Constitution is operative, for that is selfevident, but whether the provision relied on is applicable.
Eighth. As Congress derives its authority to levy local taxes for local purposes within the territories, not from the general grant of power to tax as expressed in the Constitution, it follows that its right to locally tax is not to be measured by the provision empowering Congress "To lay and collect Taxes, Duties, Imposts and Excises," and
* Mormon Church r. United States, 136 U. S. 1, 44.