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v. United States, 181 U. S. 283, 45 L. ed., S. 363, 48 L. ed. 481, 24 Sup. Ct. Rep. 305, 862, 21 Sup. Ct. Rep. 648, and intervening and the constitutional restrictions upon cases, to new applications, and farther than Congress, we are of opinion that the New they properly can be made to go. Whether York statute is valid, so far as the 14th we are to distinguish or to identify taxes Amendment is concerned. on sales and taxes on goods depends on the The other ground of attack is that the act scope of the constitutional provision con- is an interference with commerce among the cerned. Compare Foppiano v. Speed, 199 U. several states. Cases were imagined, which, S. 501, 520, 50 L. ed. 288, 292, 26 Sup. Ct. it was said, would fall within the statute, Rep. 138. A tax on foreign bills of lading and yet would be cases of such commerce; may be held equivalent to a tax on exports and it was argued that if the act embraced as against article 1, § 9; a license tax any such cases it was void as to them, and, on importers of foreign goods may be if void as to them, void altogether, on a held an unauthorized interference with com- principle often stated. United States v. merce; and yet it would be consistent to Ju Toy, 198 U. S. 253, 262, 49 L. ed. 1040, sustain a tax on sales within the state as 1043, 25 Sup. Ct. Rep. 644. That the act is against the 14th Amendment, so far as that void as to transactions in commercebealone is concerned. Whatever the right of tween the states, if it applies to them, is parties engaged in commerce among the thought to be shown by the decisions constates, a sale depends in part on the law of cerning ordinances requiring a license fee the state where it takes place for its valid from drummers, so called, and the like. ity and, in the courts of that state, at least, Robbins v. Taxing District, 120 U. S. 489, for the mode of proof. No one would con- 30 L. ed. 694, 1 Inters. Com. Rep. 45, 7 Sup. test the power to enact a statute of frauds Ct. Rep. 592; Stockard v. Morgan, 185 U. S. for such transactions. Therefore the state 27, 46 L. ed. 785, 22 Sup. Ct. Rep. 576; may make parties pay for the help of its Rearick v. Pennsylvania, 203 U. S. 507, 51 L. laws, as against this objection. A statute ed. 295, 27 Sup. Ct. Rep. 159. requiring a memorandum in writing is quite But there is a point beyond which this as clearly a regulation of the business as a court does not consider arguments of this tax. It is unnecessary to consider other sort for the purpose of invalidating the tax answers to this point.

laws of a state on constitutional grounds. Yet another ground on which the owners This limit has been fixed in many cases. It of stock are said to be deprived of their is that unless the party setting up the unproperty without due process of law is the constitutionality of the state law belongs to adoption of the face value of the shares as the class for whose sake the constitutional the basis of the tax. One of the stocks was protection is given, or the class primarily worth $30.75 a share of the face value of protected, this court does not listen to his $100, the other $172. The inequality of the objections, and will not go into imaginary tax, so far as actual values are concerned, cases, notwithstanding the seeming logic of is manifest. But, here again equality in this the position that it must do so, because if, sense has to yield to practical considerations for any reason, or as against any class emand usage. There must be a fixed and indis- braced, the law is unconstitutional, it is putable mode of ascertaining a stamp tax. void as to all. Albany County v. Stanley, In another sense, moreover, there is 105 U. S. 305, 311, 26 L. ed. 1044, 1049; equality. When the taxes on two sales are Clark v. Kansas City, 176 U. S. 114, 118, 44 equal, the same number of shares is sold in L. ed. 392, 396, 20 Sup. Ct. Rep. 284; each case; that is to say, the same privilege Lampasas v. Bell, 180 U. S. 276, 283, 284, 45 is used to the same extent. Valuation is L. ed. 527, 530, 531, 21 Sup. Ct. Rep. 368; not the only thing to be considered. As was Cronin v. Adams, 192 U. S. 108, 114, 48 L. pointed out by the court of appeals, the ed. 365, 368, 24 Sup. Ct. Rep. 219. If the familiar stamp tax of 2 cents on checks, ir-law is valid when confined to the class of respective of amount, the poll tax of a fixed the party before the court, it may be more sum, irrespective of income or earning capac- or less of a speculation to inquire what exity, and many others, illustrate the neces-ceptions the state court may read into sity and practice of sometimes substituting general words, or how far it may sustain an count for weight. See Bell's Gap R. Co. v. act that partially fails.

act that partially fails. With regard to Pennsylvania, 134 U. S. 232, 33 L. ed. 892, taxes, especially, perhaps it might be as10 Sup. Ct. Rep. 533; Merchants' & M. Nat. sumed that the legislature meant them to Bank v. Pennsylvania, 167 U. S. 461, 42 L. be valid to whatever extent they could be ed. 236, 17 Sup. Ct. Rep. 829. Without sustained, or some other peculiar principle going farther into a discussion which, per- might be applied. See, e. g., People's Nat. haps, could have been spared in view of the Bank v. Marye, 191 U. S. 272, 283, 48 L, ed. decision in Thomas v. United States, 192 U. 180, 186, 24 Sup. Ct. Rep. 68.

V.

cases.

Whatever the reason, the decisions are of sales would be one. American Steel & clear, and it was because of them that it Wire Co. v. Speed, 192 U. S. 500, 48 L. ed. was inquired so carefully in the drummer 538, 24 Sup. Ct. Rep. 365. We think it un. cases whether the party concerned was him necessary to explain at greater length the self engaged in commerce between the reasons for our opinion that the petitioner states. Stockard v. Morgan, 185 U. S. 27, has suffered no unconstitutional wrong. 30, 35, 36, 46 L. ed. 785, 789, 793, 794, 22 Order affirmed. Sup. Ct. Rep. 576; Caldwell v. North Caro. lina, 187 U. S. 622, 47 L. ed. 336, 23 Sup. Ct. Rep. 229; Rearick v. Pennsylvania, supra. Therefore we begin with the same inquiry UNITED STATES, Petitioner, in this case, and it is plain that we can get no farther. There is not a shadow of

G. FALK & BROTHER. a ground for calling the transaction described such commerce.

The communi. Duties-on withdrawals from bonded ware

houses. cations between the parties were not between different states, as in Western U. when withdrawn from a bonded warehouse,

1. The duty upon leaf tobacco which, Teleg. Co. v. Texas, 105 U. S. 460, 26 L. ed. has lost in weight through evaporation of 1067, and the bargain did not contemplate moisture, must be assessed on the basis of or induce the transport of property from weight at the time of the original entry, as one state to another, as in the drummer prescribed by the proviso to the act of July

Rearick v. Pennsylvania. The bar- 24, 1897 (30 Stat. at L. 213, chap. 11, U. Š. gain was not affected in any way, legally Comp. Stat. 1901, p. 1701), § 33, which is or practically, by the fact that the parties general in its application, and not restricted

to merchandise imported before the act took happened to have come from another state

effect. before they made it. It does not appear Duties—on withdrawals from bonded warethat the petitioner came into New York to

houses. sell his stock, as it was put on his behalf.

2. The duty on imports withdrawn It appears only that he sold after coming from bonded warehouses must be assessed into the state. But we are far from im on the basis of weight at the time of plying that it would have made any dif- original entry, as prescribed by the proviso ference if he had come to New York with to act of July 24, 1897, § 33, notwithstandthe supposed intent before any bargain was ing the addition by the act of Dec. 15, 1902

(32 Stat. at L. 753, chap. 1, U. S. Comp. made.

Stat. Supp. 1905, p. 419), of a proviso to s It is said that the property sold was not 20 of the customs administrative act of within the state. The immediate object of June 10, 1890 (26 Stat. at L. 140, chap. 407), sale was the certificate of stock present in that the same rate of duty shall be col New York. That document was more than lected upon such merchandise as may be evidence, it was a constituent of title. No imposed by law upon like articles imported doubt, in a more remote sense, the object vision refers to the rate of duty, and not to

at the time of withdrawal, since this prowas the membership or share which the the date at which the weight is to be taken certificate conferred or made attainable. as the basis of such duty. More remotely still it was an interest in Statutes-provisos—adoption of official conthe property of the corporation, which

struction by re-enactment. might be in other states than either the

3. Congress, by enacting the proviso to corporation or the certificate of stock. But the act of July 24, 1897, § 33, which differs we perceive no relevancy in the analysis. from the proviso to the act of October 1, The facts that the property sold is outside 1890 (26 Stat. at L. 624, chap. 1244), § 50, of the state, and the seller and buyer only in substituting the word "entry for foreigners, are not enough to make a sale the word "withdrawal” as the date when

the weight of merchandise withdrawn from commerce with foreign nations or among the bonded warehouses is to be taken as the several states, and that is all that there is basis of the duty, must be deemed to have here. On the general question there should adopted the construction given to the be compared with the drummer cases the earlier proviso by the Attorney General decisions on the other side of the line. and followed by the executive officers Nathan v. Louisiana, 8 How. 73, 12 L. ed. charged with the administration of the law, 992; Woodruff v. Parham, 8 Wall. 123, 19 | viz., that such proviso was general in its

application, and not restricted to merchan. L. ed. 382; Brown v. Houston, 114 U. S. 622, dise imported before the act took effect. 29 L. ed. 257, 5 Sup. Ct. Rep. 1091; Emert v. Missouri, 156 U. S. 296, 39 L. ed. 430, 5

[No. 259.] Inters. Com. Rep. 68, 15 Sup. Ct. Rep. 367. A tax is not an unconstitutional regulation Argued December 4, 1906. Decided January in every case where an absolute prohibition

7, 1907.

ON N WRIT of Certiorari to the United the proviso of g 50 of the act of 1890 was.

States Circuit-Court of Appeals for the repealed by § 33 of the act of 1897. Second Circuit to review a judgment which Those sections are, respectively, as folreversed a judgment of the Circuit Court for lows: the Southern District of New York sustain- “Sec. 50. That on and after the day when ing the decision of the board of general this act shall go into effect all goods, wares, appraisers, which had affirmed the ruling and merchandise previously imported, for of the collector that the duty on imports which no entry has been made, and all withdrawn from bonded warehouses must be goods, wares, and merchandise previously assessed on the basis of the weight at the entered without payment of duty and untime of the original ertry. Judgment of der bond for warehousing, transportation, the Circuit Court of Appeals reversed and or any other purpose, for which no permit that of the Circuit Court affirmed.

of delivery to the importer or his agent has See same case below, 146 Fed. 484.

been issued, shall be subjected to no other The facts are stated in the opinion. duty upon the entry or the withdrawal

Assistant Attorney General McReynolds! thereof than if the same were imported, and Solicitor General Hoyt for petitioner. respectively, after that day:

day: Provided, Messrs. John G. Carlisle, Edward S. that any imported merchandise deposited in Hatch, J. Stuart Tompkins, and Hatch, bond in any public or private bonded wareKeener, & Clute for respondents.

house, having been so deposited prior to

the first day of October, eighteen hundred Mr. Justice McKenna delivered the opin- and ninety, may be withdrawn for consumpion of the court:

tion at any time prior to February first, This case involves the question whether, eighteen hundred and ninety-one, upon the upon withdrawal of imports from a bond payment of duties at the rates in force ed warehouse, duties should be collected ac- prior to the passage of this act: Provided, cording to their weight then or upon their further, That, when duties are based upon greater weight when entered and imported the weight of merchandise deposited in any into the country, the loss having been oc- public or private bonded warehouse, said casioned by evaporation of moisture.

duties shall be levied and collected upon The merchandise in question was leaf the weight of such merchandise at the time tobacco imported into the port of New York, of its withdrawal.” 26 Stat. at L. 624, a part before and a part after July 24, 1897. chap. 1244. It was entered under bond for warehousing

“Sec. 33. That on and after the day without the payment of duty, and with when this act shall go into effect all goods, drawn from warehouse after the present wares, and merchandise previously importtariff act went into effect, and was assessed ed, for which no entry has been made, and by the collector for duty on the basis of all goods, wares, and merchandise previousweight at the time of its entry. The im- ly entered without payment of duty, and porters, Falk & Brother, protested and ap- under bond for warehousing, transportation, pealed from the decision of the collector to or any other purpose, for which no permit the board of general appraisers. The board of delivery to the importer or his agent affirmed the ruling of the collector on its has been issued, shall be subjected to the opinion in Re Schmidt (G. A. 4214, T. D. duties imposed by this act, and to no other 19715). Falk & Brother then instituted duty, upon the entry or the withdrawal proceedings for review before the circuit thereof: Provided, That, when duties are court for the southern district of New York, based upon the weight of merchandise deand that court sustained the decision of the posited in any public or private bonded board of appraisers.

appraisers. 145 Fed. 574. The warehouse, said duties shall be levied and circuit court of appeals reversed the circuit collected upon the weight of such merchancourt. 146 Fed. 484.

dise at the time of its entry.30 Stat. at. The contention of the importers is that L. 213, chap. 11, U. S. Comp. Stat. 1901, p. the merchandise is subject to duty under 1701. the provisions of Schedule F of the act of The circuit court held that those sections July 24, 1897, based upon weight at the were not repugnant. The court said: time of withdrawal from bond for consump- “Neither is general in its application, but tion, under the provisions of g 50 of the act is restricted to merchandise previously imof October 1, 1890. It is contended that the ported for which no entry has been made.proviso of the latter act has not been re- The court, however, sustained the decision pealed but is in full force and effect, and is of the board on the ground that § 2983 of applicable to merchandise entered in bond the Revised Statutes (U. S. Comp. Stat. subsequent to the passage of the act of July 1901, p. 1958) was applicable. That seetion 24, 1897. The board of appraisers held that is as follows: "In no case shall there be

was

any abatement of the duties or allowance flaxseed in question which

made for any injury, damage, deterioration, loss. dutiable, under the act of 1883 [22 Stat at or leakage sustained by any merchandise L. 513, chap. 121], at 20 cents per bushel of while deposited in any public or private 56 pounds, less tare, meant 56 pounds of bonded warehouse."

clean seed, or, at least, seed free from any The importers denied the application of impurities, such as the clay, sand, and that section, and contended that under the gravel in question. law, and particularly under $ 20 of the The moisture which the tobacco in the customs administrative act of June 10, as case at bar absorbed cannot be said to be amended December 15, 1902 (presently to be an impurity within the meaning of that stated), they were authorized to withdraw | decision, even though moisture in tobacco is the merchandise from warehouse upon the a variable quantity and its amount can be payment of duties and charges based upon estimated by weighing the tobacco at difits weight at the time of withdrawal. The ferent times. Nor can it be considered as court ruled against the contention, and an independent, nontaxable substance, even said: "It seems too plain for discussion though, as conceded in this case, it was abthat the word 'loss' [referring to § 2983], sorbed on the ocean voyage. The statutes coupled as it is in the disjunctive with contemplate and apply to merchandise ‘leakage,' applies precisely to such a case which may change in weight, and if the as the one before us. I cannot find any moisture in the tobacco in this case can be sound reason for believing that the Congress regarded as an independent substance,-80 did not have § 2983 in mind when it enacted much “sea water,” to use counsel's graphic said § 20, as amended. It is obvious that phrase,-a question of the application of $20, especially as amended, refers

amended, refers ex- $$ 50 or 33 could not arise. One or other of clusively to rate rather than weight.” The those sections was considered applicable circuit court of appeals differed from the from the beginning, and the importations circuit court in the application of § 2983. regarded as controlled by it, as merchandise It held that the loss there provided for re- subject to duty by weight, and necessarily lated solely to the loss of merchandise sub- there was involved the question at what ject to duty, and such loss had not occurred. time the weight should be estimated,-at The court further held that the other terms the time of entry or at the time of withof the section referred to actual reduction drawal from warehouse. To that question, in the value or quantity of the merchandise then, we shall address ourselves. itself. "It is clear,” it was said, "that It is said by counsel for the United evaporation of moisture is not 'loss'

States that, prior to October 1, 1890, duties sustained by

merchandise." The were uniformly demanded and collected accase of Seeberger v. Wright & L. Oil & Leadcording to the weight of merchandise at Mfg. Co. 157 U. S. 183, 39 L. ed. 665, 15 original entry, citing in support of the asSup. Ct. Rep. 583, was referred to as anal- sertion the custom regulations of 1884 and ogous. The court also disagreed with the 1899. Upon that date (October 1, 1890) the construction of the circuit court of $ 20 of tariff act of 1890 took effect. Section 50 the customs administrative act, and held provided, as we have seen, that goods prethat by virtue of the proviso added to that viously imported, for which no entry had section December 15, 1902 (stated later), been made, and goods warehoused, for which duties should have been assessed according no permit of delivery had been issued, to the weight of the tobacco at the time should be subject to no other duty than if of its withdrawal.

the goods were imported after the day the This history of the case exhibits the con- act took effect. It was also provided that, tentions of the parties and the elements of when duties were based upon the weight of the contentions, and, it will be seen, the warehoused merchandise, the duty should case is one of statutory construction. “be levied and collected upon the weight of

First, as to Seeberger v. Wright & L. Oil such merchandise at the time of its with& Lead Mfg. Co. supra, which is urged as drawal(italics ours). A question arose as controlling The importation there was to the scope of the proviso,—whether it flaxseed. The proof showed that the seed was restricted to the matter immediately contained dust composed of clay, sand, and preceding, that is, merchandise imported begravel to an average of 4 per cent. The case fore the act took effect, or was of general turned upon the meaning of the word application, applying as well to merchandise “draught” in § 2898 of the Revised Statutes imported after as before the act took effect. (U. S. Comp. Stat. 1901, p. 1919). It was The Attorney General decided that the latassumed that the word did not apply to im- ter was its effect. He said (20 Ops. Atty. purities, and it was said that the lower Gen. 81, 82):

that under court was correct in assuming that the former tariff acts the rule has been to levy duties upon weighable merchandise accord- deposited in warehouse might be withdrawn ing to the weight at the date of impor- for consumption within one year from the tation, but this proviso seems to be in- date of importation, upon payment of the tended to change that rule, and there seems duties and charges to which it might be to be sufficient reason for such change." subject by law at the time of withdrawal.

27 S. C.-13.

aware

The executive officers of the government At the expiration of one year, and until the followed this construction until the act of expiration of three years, it might be withJuly 24, 1897, known as the Dingley act, drawn for consumption on payment of the was passed. The construction made by the duties assessed on the original- entry and Attorney General is disputed as applicable charges, and an additional duty of 10 per to § 33 of the act of 1897, and it is urged centum on the amount of such duties. It that the whole scope and meaning of that was decided in Merritt v. Cameron, 137 U. section, when reduced to its simplest terms, S. 542, 550, 551, 34 L. ed. 772, 775, 11 Sup. make goods theretofore entered under bond Ct. Rep. 174, that that section "was intendfor warehouse subject to the duties imposed ed to provide for cases in which a change of by the act upon the withdrawal thereof, rate of duty had been made by statute when the section is construed in accordance while the merchandise was in bonded warewith the rule that a proviso refers only to house." the provision of a statute to which it is ap- Then came § 20 of the customs adpended. This may be conceded to be the ministrative act of June 10, 1890 (26 Stat. primary purpose of a proviso, but a pre- at L. 140, chap. 407), as amended by act of sumption of such purpose cannot prevail to October 1, 1890 (26 Stat. at L. 624, chap. determine the intention of the legislature 1244, U. S. Comp. Stat. 1901, p. 1950), proagainst other tests of meaning more viding that warehouse merchandise might demonstrative. We said in United States be withdrawn for consumption within three v. Whitridge, 197 U. S. at page 143, 49 L. years from the date of the original impored. at page 698, 25 Sup. Ct. Rep. at page tation, on payment of the duties and 408: “While no doubt the grammatical and charges to which it might be subject by logical scope of a proviso is confined to the law at the time of such withdrawal. The subject matter of the principal clause, we section was amended in 1902 (32 Stat. at L. cannot forget that in practice no such limit 753, chap. 1, U. S. Comp. Stat. Supp. 1905, is observed.” And the Attorney General's p. 419) by the addition of the following proopinion cannot be overlooked. The proviso viso: “Provided, That the same rate of duty which he construed in § 50 of the act of shall be collected thereon as may be imposed 1890 was re-enacted in § 33 of the act of by law upon like articles of merchandise im1897. It would be extreme to hold that ported at the time of the withdrawal.” The Congress by doing so intended to set up the circuit court of appeals gave controlling force technical rule relating to provisos against to the proviso as fixing the meaning of the the construction of the Attorney General, section. The court said that it had held in and to change that construction by repeat-Mosle v. Bidwell, 65 C. C. A. 533, 130 Fed. ing the very words construed. And there | 334, "that the amendment of 1902 was could have been no oversight. The practice declaratory of the meaning of the section of the executive officers for years gave prior to said amendment, and that its meanemphasis and materiality to the construction. ing as thus declared was that no greater or A change was made, however,-a change of different duties could be imposed than those one word,-a change recommended by the to which other like goods imported at the Treasury Department to increase the reve time of withdrawal would be subject." Renues and give greater convenience to the ad- garding this decision conclusive the ministration of the customs laws. The court said: “If other like goods had been word "entry” was substituted for the word imported at the time when these goods (the "withdrawal,” and necessarily thereafter tobacco in question) were withdrawn, duty duties upon merchandise there provided for would have been assessed thereon according were to be based upon weight at the time of to their weight at such time.”

time.” But the entry. Nor do we see that there is any question in Mosle v. Bidwell was not the contradiction of this in other provisions of same as in the case at bar. The question the statute. Certain provisions of the now is not what rate of duty merchandise customs administrative act are, however, re- is subject to, or whether it is exempt from lied upon. The provisions of that act, here-duty, but at what date its weight is to be after quoted, originated in § 1 of the act | taken as a basis of duty. And weight is of March 14, 1866 (14 Stat. at L. 8, chap. a fact independent of the rate of duty. 17), and were carried into the Revised The proviso of § 20 of the customs adStatutes as $.2970 (U. S. Comp. Stat. 1901, ministrative act, therefore, cannot be made p. 1950), which provided that merchandise | paramount to the proviso in § 33 of the

as

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