Argument of Mr. Wickham Smith for Appellants.

tional will be rejected. 'But' as was said by Chief Justice Shaw, in Warren v. Mayor and Aldermen of Charlestown, 2 Gray, 84, If they are so mutually connected with and dependent on each other as conditions, considerations or compensations for each other as to warrant a belief that the legislature intended them as a whole and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected must fall with them.' The point to be determined is, whether the unconstitutional provisions are so connected with the general scope of the law as to make it impossible if they are stricken out, to give effect to what appears to have been the intent of the legislature." The principle governing these decisions, as enunciated by Chief Justice Shaw in this case, has been universally cited with approval and followed. The application of it to the case at bar under the decisions quoted seems perfect. The same doctrine is held in Eckhart v. State, 5 West Va. 515; Tillman v. Cocke, 9 Baxter, 429; Meyer v. Berlandi, 39 Minnesota, 438; State v. Sank County, 62 Wisconsin, 376; State v. Hanger, 5 Arkansas, 412; Thorne v. Cramer, 15 Barb. 112; Parker v. Commonwealth, 6 Penn. St. 507; S. C. 47 Am. Dec. 480; Meshmeier v. State, 11 Indiana, 482; Lathrop v. Mills, 19 California, 513; State v. Copeland, 3 R. I. 33; State v. Sinks, 42 Ohio St. 345; State v. Pugh, 43 Ohio St. 98; Rader v. Union Township, 39 N. J. Law (10 Vroom) 509; Flanagan v. Plainfield, 44 N. J. Law (15 Vroom) 118; W.U. Tel. Co. v. State, 62 Texas, 630; Childs v. Shower, 18 Iowa, 261; Union Pacific Railroad v. Atchison, 28 Kansas, 453; Moore v. New Orleans, 32 La. Ann. 726.

Mr. W. Wickham Smith (with whom was Mr. Charles Curie on the brief) for Boyd, Sutton & Co., appellants.

Section 3 of the act commonly called the "reciprocity section" is unconstitutional because it is a delegation of legislative power to the executive. It delegates to the President the power to determine, as to the five articles therein specified: (1) From what countries they must pay duty; (2) When they

Argument of Mr. Wickham Smith for Appellants.

shall begin to pay it; (3) How long they shall continue to pay it. The only point not left to his discretion is the amount to be paid. The Constitution, Art. 1, sec. 8, says: The Congress shall have power to lay and collect taxes, duties, imports and excises.

One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. Cooley Const. Lim. c. 11, p. 137.

It would seem that if there was any class of laws to which this principle should be strictly applied it is tax laws; laws by which the government puts forth its strong arm to take the property of the citizen from him to apply to its own purposes, or, as in this act, to bounties. No power conferred upon the legislature should be more jealously guarded or more cautiously or more scrupulously exercised. Yet here we have a law which delegates to the President of the United States the power, by a mere stroke of his pen, to impose an onerous and burdensome tax on articles, all of which are the subject of daily consumption by the people of the whole country, some of which cannot be produced here, and none of which can be produced here in sufficient quantities to supply the people's needs. It delegates to him the power of determining when to tax them and how long to tax them. On these questions his judgment, wisdom and patriotism are substituted for that of the people's representatives.

It has been sought to defend this power on the ground that laws have frequently been passed to take effect upon the happening of a future event, and that such legislation has been pronounced constitutional. Without discussing the soundness of such judicial decisions, it is sufficient to say that such cases are not parallel to the one now under consideration. A law may take effect on the happening of a future event. An event is a fact. The question whether it has or has not happened is one which anybody can readily determine. No exercise of judgment or wisdom is necessary. It is a matter of simple

VOL. CXLIII-42

Argument of Mr. Wickham Smith for Appellants.

intelligence. All questions that involve judgment and discretion are passed upon by the legislature. But in the case of this law, none of such questions were passed upon by the Congress. They were all committed to the wisdom, discretion and patriotism of the President.

A case much relied on in support of this section is The Brig Aurora v. The United States, 7 Cranch, 382.

There are three reasons why this case should have little weight as an authority: (1) It was decided at a very early date, before the principles of constitutional government had received the consideration and discussion which they have since received: (2) The point does not seem to have been carefully considered. At any rate the bare conclusion is stated without any exposition of the principles involved, and with no statement of the reasons on which it is based. Such cases are seldom deemed entitled to be considered as authoritative except on the precise question involved: (3) The power delegated to the President by the act then under consideration was not a taxing power; but the determination of the question whether a European government had so modified its edicts as to cease to violate neutral commerce. While this involved a certain amount of judgment, it was not such an abdication of legislative functions as that in section 3 of the Tariff Act. The power there delegated to the President was almost a war power, conferred at a time when our relations with England and France were strained, and relating to a subject which two years later involved us in a war with England. The power now conferred upon the President is a taxing power conferred at a time when we are at peace with all the world. See Thorne v. Cramer, 15 Barb. 112; S. C. 47 Am. Dec. 480; Rice v. Foster, 4 Harrington (Del.) 479; State v. Simons, 32 Minnesota, 540; Ex parte Wall, 48 California, 279; State v. Hudson County Commissioners, 37 N. J. Law (8 Vroom) 12; State v. Swisher, 17 Texas, 441; Clark v. Mobile, 67 Alabama, 217; Grim v. Weissenberg School District, 57 Penn. St. 433; S. C. 98 Am. Dec. 237; Brodhead v. Milwaukee, 19 Wisconsin, 624; State v. Weir, 33 Iowa, 134; Farnsworth Co. v. Lisbon, 62 Maine, 451; Willis v. Owen, 43 Texas, 41.

Argument of Mr. Clarke and Mr. E. B. Smith for Appellants.

We submit that a statute which delegates to the executive the discretion to determine when and for how long and on what portion of the importations of a particular article (according to the country of its growth or production) a tax shall be levied, according to his judgment and discretion as to the fairness and justice of it, fixing only the amount of such tax when levied, is an unconstitutional delegation of the taxing power.

The incorporation in this act of the unconstitutional delegation of the taxing power in section 3, renders the whole act void.

This section relates to the same subject matter as the main portion of the bill, viz.: taxes on imports. It is an essential part of the scheme contemplated by said act. It was certainly one of the conditions and compensations for various other parts of the bill, for it recites substantially that the free introduction into the United States of sugar, molasses, coffee, tea and hides was enacted with a view to securing reciprocal trade with countries producing those articles and for that purpose.

Can the court believe that Congress would have passed this act without this section? The answer is, Congress refused to do so. This section was not in the bill as it passed the House. It was incorporated as an amendment by the Senate. The House refused to concur in the amendment. The Senate insisted on it. The Conference Committee of the two Houses retained it with an amendment simply as to the time of its taking effect. How then can it be said as matter of law that the act would have been passed without it? It is a matter of public knowledge that it was regarded at the time, and has been since, as one of the vital parts of the bill.

Mr. Edwin B. Smith and Mr. Stephen G. Clarke for H. Herrman, Sternbach & Co., appellants.

Application of the principles and decisions of this court to the provisions found in paragraphs 231 to 236 of Schedule E of this act, giving a bounty to the producers of native sugar, manifest their unconstitutionality. Certainly, there is no more constitutional authority for paying men to tap a maple

Argument of Mr. Clarke and Mr. E. B. Smith for Appellants.

and boil its sap, or to raise cane, than there is to raise hay, potatoes, corn or cabbage. If the taxes constituting the funds in the national treasury can be collected and disbursed to compensate a man for making sugar, they can be for making brick or any other manufacture. There can be, in such case, no limit to the extent to which moneys raised by taxation can be appropriated to the individual benefit of preferred citizens, and in the encouragement of their private enterprises and to their personal gain. Loan Association v. Topeka, 20 Wall. 655; Jarrolt v. Moberly, 103 U. S. 580; United States v. New Orleans, 98 U. S. 381; Ralls County v. United States, 105 U. S. 733; Parkersburg v. Brown, 106 U. S. 487; Cole v. La Grange, 113 U. S. 1.

Wherever state courts have had occasion to pass upon this question, it has been answered in the same way. Allen v. Jay, 60 Maine, 124; Hooper v. Emery, 14 Maine, 375; Weismer v. Douglas, 64 N. Y. 91; Brewer Brick Co. v. Brewer, 62 Maine, 62; Farnsworth Co. v. Lisbon, 62 Maine, 451; Ohio Valley Iron Works v. Moundsville, 11 West Virginia, 1; Trustees Channel Co. v. Central Pacific Railroad, 51 California, 269; Curtis v. Whipple, 24 Wisconsin, 350; Bissell v. Kankakee, 64 Illinois, 248; State v. Osawkee, 14 Kansas, 418; State v. Nemaha Co., 7 Kansas, 542; McConnell v. Hamm, 16 Kansas, 228; State v. Foley, 30 Minnesota, 350.

The relation between the government and the citizen, as a tax-payer, is that the latter's property is, pro tanto, taken for the direct support of the former - not for the benefit of any fellow-citizens individually. Pray v. Northern Liberties, 31 Penn. St. 69; Sharpless v. Mayor, 21 Penn. St. 147; S. C. 59 Am. Dec. 759; In re Mayor, 11 Johns. 77; Wynehamer v. People, 13 N. Y. 375.

Many cases besides those above cited treat such legislation as void, because a violation of natural right, independent of constitutions. Calder v. Bull, 3 Dall. 386: Wilkinson v. Leland, 2 Pet. 627; Osborn v. Nicholson, 13 Wall. 654; Gunn v. Barry, 15 Wall. 610; Bartemeyer v. Iowa, 18 Wall. 129.

The connection of parts in this statute is such that the avoidance of any material provision which received executive approval must nullify the whole.