(10552.-G. A. 202.)

Silk and wool knit goods.

NEW YORK, December 15, 1890.

Before the Board of United States General Appraisers at New York, December 15, 1890.

In the matter of the protest, 654 a, of Guttmann & Leopold, concerning the assessment of duty by the collector of customs at New York on certain so-called "silk underwear," imported per La Gascogne, July 16, 1890.

Opinion by Sharretts, General Appraiser.

The merchandise in question consists of knit underwear composed of wool and silk, and wool, cotton, and silk, upon which duty was assessed at 35 cents per pound and 40 per cent. ad valorem, under paragraph 363 of the act of 1883. Against this rate of duty the importers protest, claiming that silk formed the component material of chief value in the garments, and that consequently they should have been classified as manufactures made of silk, or of which silk is the component material of chief value, and duty assessed upon them at 50 per cent. ad valorem, under paragraph 383.

The goods are itemized in the invoice as "ladies' wool vests." From the evidence submitted in the case it appears they are known commercially as "knit goods." It would, therefore, seem to us immaterial, whether silk was or was not the component material of chief value.

Paragraph 362 provides for "all manufactures of wool of every description made wholly or in part of wool * * * valued at above eighty cents per pound, thirty-five cents per pound and in addition thereto forty per centum ad valorem."

Paragraph 363 reads: "Flannels, blankets, hats of wool knit goods, and all goods made on knitting-frames * * * valued at above eighty cents per pound, thirty-five cents per pound and in addition thereto forty per centum ad valorem."

So far as the component parts, silk and wool, are concerned, the term “of which silk is the component material of chief value" is no more specific than "composed in part of wool," and the rates applicable to the two materials would be equally operative, but the words "knit goods" are more descriptive of the knit underwear in question than either of the former terms and controls the classification.

The merchandise upon appeal being valued at over 80 cents per pound, the assessment of duty upon the same at 35 cents per pound and 40 per cent. ad valorem was, in our opinion, correct, and is affirmed.

(10553.-G. A. 203.)

Constitutionality of the act of October 1, 1890.

NEW YORK, December 15, 1890.

Before the Board of United States General Appraisers at New York, December 14, 1890.

In the matter of the protest, 2051 b, of Marshall Field & Co., against the decision of the collector at the port of Chicago assessing certain rates of duty on imported merchandise.

Opinion by Somerville, General Appraiser.

The question raised in this case is one of great importance, and we are fully aware of the fact that its decision is pregnant with results of the gravest character. The appellants in their protest assail as unconstitutional the act of Congress entitled "An act to reduce the revenue and equalize duties on imports, and for other purposes," approved October 1, 1890, commonly known as the McKinley tariff act. sisted that this act is void and of no effect, and for this reason that the duties assessed on certain imported merchandise under its provisions were illegally assessed; that the tariff act of March 3, 1883, still remains in full force, and that the rates of duty imposed by it continue unrepealed.

The first ground upon which this contention is based is, that an important and material part of the measure as enacted by Congress was omitted or clerically expunged in the engrossed law as signed by the President. The law as passed, therefore, it is said, was never approved, and the law as approved was never passed, and this variance, it is urged. vitiates not only the omitted section but the entire law.

The proceedings of Congress, of which we are required to take judicial notice, bear out the fact that the bill which passed both the House of Representatives and the Senate contained the following clause as part of section 30: * * *

SEC. 30. That on all original and unbroken factory packages of smoking and manufactured tobacco and snuff, held by manufacturers or dealers at the time the reduction herein provided for shall go into effect, upon which the tax has been paid, there shall be allowed a draw back or rebate of the full amount of the reduction, but the same shall not apply to any case where the claim has not been presented within sixty days following the date of reduction; and such rebate to manufacturers may be paid in stamps at the reduced rate; and no claim shall be allowed or drawback paid for a less amount than $5. It shall be the duty of the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, to adopt such rules and regulations, and to prescribe and furnish such blanks and forms as may be neces

sary to carry this section into effect. For the payment of the rebates provided for in this section there is hereby appropriated any money in the Treasury not otherwise appropriated.

The Senate opposed this clause of the law, and receded from their opposition only after a conference was ordered.

In engrossing the bill the clause in question was omitted apparently by clerical error, and the President signed the engrossed bill in its defective condition.

In deciding upon the legal validity of statutes, assailed for unconstitutionality, courts always approach the consideration of the subject with great caution. It is a settled maxim that every law will, in the first instance, be presumed to be constitutional until the contrary is made to clearly appear. All reasonable doubts must be resolved in favor of the validity of the given law. In other words, to be in doubt is to maintain the law. (Cooley on Const. Lim., 6th ed., 216.)

It may be conceded that a bill can become a law only when it has gone through all the forms made necessary by the Constitution of the United States to give it validity and force as such. It must be passed by both houses of Congress, and approved by the President, or, in the absence of such approval, pass through other forms prescribed by the Constitution. * * *

In some adjudged cases the rule is broadly stated to be that if a bill which is passed by the general assembly of a State varies materially in substance and legal effect from that which is approved by the gov ernor, then there exists such a want of legal and actual identity between the bill passed and the one approved as that neither of them acquires the force of a valid and constitutional enactment. (Jones vs. Hutchinson, 43 Ala., 721; Moody vs. The State, 48 Ala., 115.)

In the case of Moog vs. Randolph, 77 Ala., 577, the supreme court of Alabama, following this principle, adjudged a revenue law to be void which had been passed by both branches of the legislature, because the enrolled bill, as approved by the governor, by clerical omission failed to contain a very important and material clause as to which there had been a controversy between the two houses resulting in an agreement after conference. Two of the judges concurred in the opinion, but Mr. Justice Stone doubted the correctness of the conclusion that the entire law was vitiated by the omission, holding, however, that the defect rendered void the omitted clause.

before the same court in the There a bill had been passed

The same question, in effect, again arose later case of Stein vs. Leeper, 78 Ala., 517. by both houses of the Alabama legislature prohibiting the sale of spirituous liquors in a large number of specified localities.

In enrolling the bill one of these localities was omitted from the title through clerical mistake. This omission operated legally to produce the same effect as if it had occurred in the body of the bill, in view of the constitutional requirement that "each law shall contain but one subject, which shall be clearly expressed in its title."

This imperfect bill was approved by the governor. The court held that the omission vitiated the law only partially, and not in toto-that it operated to expunge the particular locality omitted, but that the residue of the law was valid and would be given full force and operation in execution of what appeared to be the concurrence of the legislative and executive intention and to the extent of such concurrence. The court was of opinion that the provisions relating to the different localities were not so connected with or dependent on each other but that the law could be executed in substantial conformity with the legis lative intention by giving it validity so far as approved. "After expunging the unconstitutional portions," it was said, "the remaining parts are complete in themselves, and capable of being executed in accordance with the legislative intent. As to the remaining parts of the statute, there was a concurrence of both houses of the general assembly and of the executive." This was clearly intended as a modification of the doctrine announced in the case of Moog vs. Randolph, supra.

This doctrine seems to be in accord with the settled rule adopted by the courts in passing on laws which are in part constitutional and in part unconstitutional. Legislative enactments are not necessarily adjudged void by reason of embracing or being associated in the same act with other parts which are unconstitutional. The test is thus formulated by Judge Cooley: "If, when the unconstitutional part is stricken out that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained." (Cooley's Const. Lim., 6th ed., 210-211.) It is only when the two parts 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," that all the provisions must fall together. (Allen vs. Louisiana, 103 U. S., 80.) It was on this principle that the Supreme Court of the United States, in Tiernan vs. Rinker, 102 U. S., 123, held that a State law forbidding the sale of spirituous might be void as to all imported

liquors and valid as to all others. Numbers of other analogous cases could be cited, but a further elaboration of the subject in this opinion is not deemed necessary.

The portion of the enactment under consideration which has been omitted from the law approved by the President was but a single section. It related to a separate and severable subject-that of rebates on tobacco. It constitutes but one of fifty-five sections of the entire act. In this law there are fourteen voluminous schedules of subjects and seven hundred and sixty-one separate paragraphs, including the free list of two hundred and eighty nine paragraphs. The number of articles embraced are innumerable, and beyond arithmetical computation.

The question is, Shall the whole law fail as unconstitutional and void because of a clerical omission of the one section relating to the one article of tobacco.

The inquiry is not entirely free from doubt. There are forcible reasons to be urged on both sides of the contention. But as we have said, under a well-settled canon of construction, to be in doubt is to sustain the law. We are not sufficiently clear in the conviction that the clerical omission of this section from the approved bill, under the rules of construction which are to guide us, should vitiate the entire law. The more conservative view is to hold that it renders invalid the omitted section only, and we accordingly so decide.

There is another ground of objection to the law which we need notice but briefly. It is contended that section 3 of the law is also unconstitutional, because it invests in the President of the United States the power to suspend laws and impose duties within his discretion. We construe the objection to be that the Chief Executive is vested with legislative power, contrary to the provisions of article 1, section 1, of the Federal Constitution, which provides that "all legislative powers shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives."

Section 3 has reference to securing reciprocal trade with foreign countries which produce and export sugars, molasses, coffee, tea, and other named articles, which are admitted free of duty into the United States.

It is provided that so often as the President shall be satisfied that any such foreign government "imposes duties or other exactions upon the agricultural or other products of the United States," which he may "deem to be reciprocally unequal and unreasonable," in view of the free entry of the articles above named, he "shall have the power and it shall be his duty to suspend by proclamation to that effect, the pro