the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant.'

"Had there been no bankruptcy proceedings, the bankrupt might have brought suit in any state court of competent jurisdiction; or, if there was a sufficient jurisdictional amount, and the requisite diversity of citizenship existed, or the case arose under the Constitution, laws, or treaties of the United States, he could have brought suit in the Circuit Court of the United States. Act of August 13, 1888, c. 866; 25 Stat. 434. He could not have sued in a District Court of the United States, because such a court has no jurisdiction of suits at law or in equity between private parties, except where, by special provision of an act of Congress, a District Court has the powers of a Circuit Court, or is given jurisdiction of a particular class of civil suits."

And after pointing out that the Bankruptcy Act of 1898 did not intend to confer the jurisdiction given under the former bankruptcy acts, the opinion continues:

"Congress, by the second clause of section 23 of the present bankrupt act, appears to this court to have clearly manifested its intention that controversies, not strictly or properly part of the proceedings in bankruptcy, but independent suits brought by the trustee in bankruptcy to assert a title to money or property as assets of the bankrupt against strangers to those proceedings, should not come within the jurisdiction of the District Courts of the United States, 'unless by consent of the proposed 'defendant,' of which there is no pretence in this case."

Applying the principles thus announced, remembering that we are dealing with an action which might have been brought by the bankrupt, but for the bankruptcy proceedings, in a Circuit Court of the United States, we think it is apparent that this action comes within the provisions of section 23 of the act of 1898. The effect of clause a, as pointed out by

Mr. Justice Gray, is to prevent the jurisdiction of the United States Circuit Court from attaching, because of the appointment of a trustee in bankruptcy. In other words, the jurisdiction of the United States courts was not to be extended, as had been done under the former acts, because of the institution of the proceedings in bankruptcy. Under clause b the jurisdiction of all courts is affected, and this clause pertains to suits begun bv the trustee, and he is not (prior to the amendment of February 5, 1903) permitted to prosecute suits unless by the consent of the defendant, except where the bankrupt might have brought or prosecuted them if proceedings in bankruptcy had not been instituted. That is, while the jurisdicof the courts was not to be extended because of the bankruptcy proceedings or the citizenship of the trustee, it was preserved to the trustee, in the jurisdiction where the bankrupt might have brought or prosecuted the suit but for the bankruptcy proceedings. While this section preserves the jurisdiction of the United States Circuit Courts over cases coming within clause a, in clause b the right of suit by the trustee is limited to courts wherein the bankrupt might have brought or prosecuted the action had the bankruptcy proceedings not been instituted.

The case of Spencer v. Duplan Silk Company, 191 U. S. 526, relied upon by the counsel for defendant in error, does not militate against this construction. In that case the question was as to the right to appeal directly to this court where an action had been begun in the state court by the trustee and was removed, on the ground of diverse citizenship, to the Federal court. It was held that the jurisdiction of the Circuit Court was acquired because of diverse citizenship and not under section 23 of the Bankruptcy Act, and consequently the judgment was final in the Circuit Court of Appeals. The same principle was recognized in Cochran v. Montgomery County, 199 U. S. 260, decided at this term.

The action in the present case was to recover a sum of money alleged to have been due, prior to the bankruptcy proceedings,

to the Southern Car and Foundry Company, which was a citizen of the State of New Jersey. The amount involved and the diverse citizenship of the parties were such that the car company might have sued the defendant, a citizen of the State of Alabama, in the Circuit Court of the United States independently of the bankruptcy proceedings. We think, by the terms of this section, it was intended to preserve this right to the trustee in bankruptcy, and that the citizenship of the trustee is wholly immaterial to the jurisdiction of such

case.

The Circuit Court erred in reaching the contrary conclusion, and its judgment is

Reversed.

LINCOLN v. UNITED STATES.

WARNER, BARNES AND COMPANY, LIMITED, v. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR

THE SOUTHERN DISTRICT OF NEW YORK.

APPEAL FROM THE

COURT OF CLAIMS.

Nos. 149, 466. Argued March 3, 1905; decided April 3, 1905; Petitions for rehearing allowed May 29, 1905; Reargued January 18, 19, 1906.—Decided on reargument May 28, 1906.

Lincoln v. United States, 197 U. S. 419, reaffirmed, after rehearing, to the effect that the Executive order of July 12, 1898, directing that upon the occupation of ports and places in the Philippine Islands by the forces of the United States duties should be levied and collected as a military contribution, was a regulation for and during the war with Spain, referred to as definitely as though it had been named, and the right to levy duties thereunder on goods brought from the United States ceased on the exchange of ratifications of the treaty of peace; that after title to the Philippine Islands passed by the exchange of ratifications on April 11, 1899, there was nothing in the Philippine Insurrection of sufficient gravity to give to those islands the character of foreign countries within the meaning of a tariff act; that the ratification of Executive action, and of authorities under the Executive order of July 12, 1898, contained in the act of July 1, 1902, 32 Stat. 691, was confined to actions taken in accord

ance with its provisions; and that the exaction of duties on goods brought from the United States after April 11, 1899, was not in accordance with those provisions and was not ratified.

A ratification by act of Congress will not be extended to cover what was not, in the judgment of the courts, intended to be covered, because otherwise the ratification would be meaningless or unnecessary. Congress out of abundant caution may ratify, and at times has ratified, that which was subsequently found not to have needed ratification.

THE facts are stated in the opinion.

Mr. Paul Fuller, Mr. Frederic R. Coudert and Mr. John G. Carlisle, with whom Mr. Henry M. Ward was on the brief, for plaintiffs in error and appellant:

The moneys exacted from the plaintiffs in error and appellants were unlawfully exacted and consequently are still their property. No change of title is operated by illegal seizure. That point is not open to reargument. Warner, Barnes & Co. v. United States, 197 U. S. 419; Dorr v. United States, 195 U. S. 138; Rassmussen v. United States, 197 U. S. 516; Czarnikow v. Bidwell, 191 U. S. 559; De Lima v. Bidwell, 182 U. S. 1, 199, 200.

The only question subject to rehearing is the effect of the act of Congress of July 1, 1902, upon the illegal seizure of the moneys of complainants and whether their ownership of the moneys was divested by the operation of said act.

Congress had no power to divest the complainants of their ownership of the moneys or deprive them of their property. Constitution, Fifth Amendment; United States v. Lee, 106 U. S. 218, 219. Nor could any ratification of an illegal act operate a change of title, nor divest complainants of their vested right to recover the moneys unlawfully exacted. De Lima v. Bidwell, 182 U. S. 199, 200; Alter's Appeal, 67 Pa. St. 433; Donovan v. Pitcher, 53 Alabama, 634; Palairet's Appeal, 67 Pa. St. 341; Norman v. Heist, 5 W. & S. 171.

1 There was also a separate brief filed by Mr. Hilary A. Herbert and Mr. Benj. Micou in behalf of certain claimants having interests similar to those of appellants.

Argument for Appellant.

202 U. S.

Apart from the right of the complainants to protect their ownership of the moneys as against the United States and to bring suit for recovery, complainants had a right of recovery against the officer or agent who made the illegal exaction. Such was the recovery in De Lima v. Bidwell, supra. This right of recovery or right of action against the official who makes the exaction or commits the trespass is recognized in a long line of cases. Little v. Barreme, 2 Cranch, 170; Meigs v. McClung's Lessee, 9 Cranch, 11; Osborn v. Bank of U. S., 9 Wheat. 738; Grisar v. McDowell, 6 Wall. 363; Bates v. Clark, 95 U. S. 204; United States v. Lee, 106 U. S. 196; Virginia Coupon Cases, 114 U. S. 270; In re Ayers, 123 U. S. 443; McGahey v. Virginia, 135 U. S. 662; Belknap v. Schild, 161 U. S. 10.

Such a right of action constitutes property in the same sense as tangible things and is equally entitled to protection against arbitrary interference or legislative impairment; even to the extent that the denial of a remedy or imposition of new conditions or restrictions upon its exercise is such an interference. Cooley, Const. Lim., 6th ed., 443; Sutherland, Stat. Const. §§ 164, 206; Steamship Co. v. Joliffe, 2 Wall. 450, 457, 458; Angle v. Chicago, St. P. &c. Ry., 151 U. S. 1, 19; Bronson v. Kinzie, 1 How. 311, 317; Barnitz v. Beverly, 163 U. S. 118, and cases there collated; Auffmordt v. Rasin, 102 U. S. 622; Hubbard v. Brainard, 35 Connecticut, 563.

The limitation upon the right to pass retrospective or retroactive legislation is that it must not interfere with vested rights. Fleckner v. Bank of U. S., 8 Wheat. 338, 363; Society v. Wheeler, 22 Fed. Cas. 767 (per Story, J.), approved in Sturgis v. Carter, 114 U. S. 519.

All of the cases in the books validating assessments or municipal bond issues have reference solely to the methods of action employed and relate to statutes curative only of defects in the procedure by which an undoubted power has been exercised. Such is the case of Mattingly v. District of Columbia, 97 U. S. 687, and the many kindred cases. No cases can