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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 scope of the constitutional provision concerned. Compare Foppiano v. Speed, 199 U. S. 501, 520, 50 L. ed. 288, 292, 26 Sup. Ct. Rep. 138. A tax on foreign bills of lading may be held equivalent to a tax on exports as against article 1, § 9; a license tax on importers of foreign goods may be held an unauthorized interference with commerce; and yet it would be consistent to sustain a tax on sales within the state as against the 14th Amendment, so far as that alone is concerned. Whatever the right of parties engaged in commerce among the states, a sale depends in part on the law of the state where it takes place for its validity and, in the courts of that state, at least, for the mode of proof. No one would contest the power to enact a statute of frauds for such transactions. Therefore the state may make parties pay for the help of its laws, as against this objection. A statute requiring a memorandum in writing is quite as clearly a regulation of the business as a tax. It is unnecessary to consider other answers to this point.
Yet another ground on which the owners of stock are said to be deprived of their property without due process of law is the adoption of the face value of the shares as the basis of the tax. One of the stocks was worth $30.75 a share of the face value of $100, the other $172. The inequality of the tax, so far as actual values are concerned, is manifest. But, here again equality in this sense has to yield to practical considerations and usage. There must be a fixed and indisputable mode of ascertaining a stamp tax. In another sense, moreover, there is equality. When the taxes on two sales are equal, the same number of shares is sold in each case; that is to say, the same privilege is used to the same extent. Valuation is not the only thing to be considered. As was pointed out by the court of appeals, the familiar stamp tax of 2 cents on checks, irrespective of amount, the poll tax of a fixed sum, irrespective of income or earning capacity, and many others, illustrate the necessity and practice of sometimes substituting count for weight. See Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 33 L. ed. 892, 10 Sup. Ct. Rep. 533; Merchants' & M. Nat. Bank v. Pennsylvania, 167 U. S. 461. 42 L. ed. 236, 17 Sup. Ct. Rep. 829. Without going farther into a discussion which, perhaps, could have been spared in view of the decision in Thomas v. United States, 192 U.
The other ground of attack is that the act is an interference with commerce among the several states. Cases were imagined, which, it was said, would fall within the statute, and yet would be cases of such commerce; and it was argued that if the act embraced any such cases it was void as to them, and, if void as to them, void altogether, on a principle often stated. United States v. Ju Toy, 198 U. S. 253, 262, 49 L. ed. 1040, 1043, 25 Sup. Ct. Rep. 644. That the act is void as to transactions in commerce between the states, if it applies to them, is thought to be shown by the decisions concerning ordinances requiring a license fee from drummers, so called, and the like. Robbins v. Taxing District, 120 U. S. 489, 30 L. ed. 694, 1 Inters. Com. Rep. 45, 7 Sup. Ct. Rep. 592; Stockard v. Morgan, 185 U. S. 27, 46 L. ed. 785, 22 Sup. Ct. Rep. 576; Rearick v. Pennsylvania, 203 U. S. 507, 51 L. ed. 295, 27 Sup. Ct. Rep. 159.
But there is a point beyond which this court does not consider arguments of this sort for the purpose of invalidating the tax laws of a state on constitutional grounds. This limit has been fixed in many cases. It is that unless the party setting up the unconstitutionality of the state law belongs to the class for whose sake the constitutional protection is given, or the class primarily protected, this court does not listen to his objections, and will not go into imaginary cases, notwithstanding the seeming logic of the position that it must do so, because if, for any reason, or as against any class embraced, the law is unconstitutional, it is void as to all. Albany County v. Stanley, 105 U. S. 305, 311, 26 L. ed. 1044, 1049; Clark v. Kansas City, 176 U. S. 114, 118, 44 L. ed. 392, 396, 20 Sup. Ct. Rep. 284; Lampasas v. Bell, 180 U. S. 276, 283, 284, 45 L. ed. 527, 530, 531, 21 Sup. Ct. Rep. 368; Cronin v. Adams, 192 U. S. 108, 114, 48 L. ed. 365, 368, 24 Sup. Ct. Rep. 219. If the law is valid when confined to the class of the party before the court, it may be more or less of a speculation to inquire what exceptions the state court may read into general words, or how far it may sustain an act that partially fails. With regard to taxes, especially, perhaps it might be assumed that the legislature meant them to be valid to whatever extent they could be sustained, or some other peculiar principle might be applied. See, e. g., People's Nat. Bank v. Marye, 191 U. S. 272, 283, 48 L. ed. 180, 186, 24 Sup. Ct. Rep. 68.
Whatever the reason, the decisions are clear, and it was because of them that it was inquired so carefully in the drummer cases whether the party concerned was himself engaged in commerce between the states. Stockard v. Morgan, 185 U. S. 27, 30, 35, 36, 46 L. ed. 785, 789, 793, 794, 22 Sup. Ct. Rep. 576; Caldwell v. North Carolina, 187 U. S. 622, 47 L. ed. 336, 23 Sup. Ct. Rep. 229; Rearick v. Pennsylvania, supra. Therefore we begin with the same inquiry in this case, and it is plain that we can get no farther. There is not a shadow of a ground for calling the transaction described such commerce. The communications between the parties were not between different states, as in Western U. Teleg. Co. v. Texas, 105 U. S. 460, 26 L. ed. 1067, and the bargain did not contemplate or induce the transport of property from one state to another, as in the drummer cases. Rearick v. Pennsylvania. The bargain was not affected in any way, legally or practically, by the fact that the parties happened to have come from another state before they made it. It does not appear that the petitioner came into New York to sell his stock, as it was put on his behalf. It appears only that he sold after coming into the state. But we are far from implying that it would have made any difference if he had come to New York with the supposed intent before any bargain was
when withdrawn from a bonded warehouse, 1. The duty upon leaf tobacco which, has lost in weight through evaporation of moisture, must be assessed on the basis of weight at the time of the original entry, as prescribed by the proviso to the act of July 24, 1897 (30 Stat. at L. 213, chap. 11, U. S. Comp. Stat. 1901, p. 1701), § 33, which is general in its application, and not restricted to merchandise imported before the act took Duties-on withdrawals from bonded ware
2. The duty on imports withdrawn from bonded warehouses must be assessed on the basis of weight at the time of original entry, as prescribed by the proviso to act of July 24, 1897, § 33, notwithstanding the addition by the act of Dec. 15, 1902 (32 Stat. at L. 753, chap. 1, U. S. Comp. Stat. Supp. 1905, p. 419), of a proviso to § 20 of the customs administrative act of June 10, 1890 (26 Stat. at L. 140, chap. 407), that the same rate of duty shall be collected upon such merchandise as may be imposed by law upon like articles imported at the time of withdrawal, since this provision refers to the rate of duty, and not to the date at which the weight is to be taken as the basis of such duty.
struction by re-enactment.
It is said that the property sold was not within the state. The immediate object of sale was the certificate of stock present in New York. That document was more than evidence, it was a constituent of title. No doubt, in a more remote sense, the object was the membership or share which the certificate conferred or made attainable. More remotely still it was an interest in Statutes-provisos-adoption of official conthe property of the corporation, which might be in other states than either the 3. Congress, by enacting the proviso to corporation or the certificate of stock. But we perceive no relevancy in the analysis. The facts that the property sold is outside of the state, and the seller and buyer foreigners, are not enough to make a sale commerce with foreign nations or among the several states, and that is all that there is here. On the general question there should be compared with the drummer cases the decisions on the other side of the line. Nathan v. Louisiana, 8 How. 73, 12 L. ed. 992; Woodruff v. Parham, 8 Wall. 123, 19 L. ed. 382; Brown v. Houston, 114 U. S. 622, 29 L. ed. 257, 5 Sup. Ct. Rep. 1091; Emert v. Missouri, 156 U. S. 296, 39 L. ed. 430, 5 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
the act of July 24, 1897, § 33, which differs from the proviso to the act of October 1, 1890 (26 Stat. at L. 624, chap. 1244), § 50, only in substituting the word "entry" for the word "withdrawal" as the date when the weight of merchandise withdrawn from bonded warehouses is to be taken as the basis of the duty, must be deemed to have adopted the construction given to the earlier proviso by the Attorney General and followed by the executive officers charged with the administration of the law, viz.. that such proviso was general in its dise imported before the act took effect. application, and not restricted to merchan
N WRIT of Certiorari to the United | the proviso of § 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 sustaining the decision of the board of general appraisers, which had affirmed the ruling of the collector that the duty on imports withdrawn from bonded warehouses must be assessed on the basis of the weight at the time of the original entry. Judgment of the Circuit Court of Appeals reversed and that of the Circuit Court affirmed.
See same case below, 146 Fed. 484. The facts are stated in the opinion. Assistant Attorney General McReynolds and Solicitor General Hoyt for petitioner.
Messrs. John G. Carlisle, Edward S. Hatch, J. Stuart Tompkins, and Hatch, Keener, & Clute for respondents.
Mr. Justice McKenna delivered the opinion of the court:
This case involves the question whether, upon withdrawal of imports from a bonded warehouse, duties should be collected according to their weight then or upon their greater weight when entered and imported into the country, the loss having been occasioned by evaporation of moisture.
The merchandise in question was leaf tobacco imported into the port of New York, a part before and a part after July 24, 1897. It was entered under bond for warehousing without the payment of duty, and withdrawn from warehouse after the present tariff act went into effect, and was assessed by the collector for duty on the basis of weight at the time of its entry. The importers, Falk & Brother, protested and appealed from the decision of the collector to the board of general appraisers. The board affirmed the ruling of the collector on its opinion in Re Schmidt (G. A. 4214, T. D. 19715). Falk & Brother then instituted proceedings for review before the circuit court for the southern district of New York, and that court sustained the decision of the board of appraisers. 145 Fed. 574. The circuit court of appeals reversed the circuit court. 146 Fed. 484.
The contention of the importers is that the merchandise is subject to duty under the provisions of Schedule F of the act of July 24, 1897, based upon weight at the time of withdrawal from bond for consumption, under the provisions of § 50 of the act of October 1, 1890. It is contended that the proviso of the latter act has not been repealed but is in full force and effect, and is applicable to merchandise entered in bond subsequent to the passage of the act of July 24, 1897.. The board of appraisers held that
"Sec. 50. That on and after the day when this act shall go into effect all goods, wares, and merchandise previously imported, for which no entry has been made, and all goods, wares, and merchandise previously entered without payment of duty and under bond for warehousing, transportation, or any other purpose, for which no permit of delivery to the importer or his agent has been issued, shall be subjected to no other duty upon the entry or the withdrawal thereof than if the same were imported, respectively, after that day: Provided, that any imported merchandise deposited in bond in any public or private bonded warehouse, having been so deposited prior to the first day of October, eighteen hundred and ninety, may be withdrawn for consumption at any time prior to February first, eighteen hundred and ninety-one, upon the payment of duties at the rates in force. prior to the passage of this act: Provided, further, That, when duties are based upon the weight of merchandise deposited in any public or private bonded warehouse, said duties shall be levied and collected upon the weight of such merchandise at the timeof its withdrawal." 26 Stat. at L. 624, chap. 1244.
"Sec. 33. That on and after the day when this act shall go into effect all goods, wares, and merchandise previously imported, for which no entry has been made, and all goods, wares, and merchandise previously entered without payment of duty, and under bond for warehousing, transportation, or any other purpose, for which no permit of delivery to the importer or his agent has been issued, shall be subjected to the duties imposed by this act, and to no other duty, upon the entry or the withdrawal thereof: Provided, That, when duties are based upon the weight of merchandise deposited in any public or private bonded warehouse, said duties shall be levied and collected upon the weight of such merchan-dise at the time of its entry." 30 Stat. at L. 213, chap. 11, U. S. Comp. Stat. 1901, p. 1701.
The circuit court held that those sections. were not repugnant. The court said: "Neither is general in its application, but is restricted to merchandise previously imported for which no entry has been made." The court, however, sustained the decision of the board on the ground that § 2983 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 1958) was applicable. That section is as follows: "In no case shall there be
any abatement of the duties or allowance | flaxseed in question which was 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 impurities, such as the clay, sand, and gravel in question.
The importers denied the application of that section, and contended that under the law, and particularly under § 20 of the customs administrative act of June 10, as amended December 15, 1902 (presently to be stated), they were authorized to withdraw the merchandise from warehouse upon the payment of duties and charges based upon its weight at the time of withdrawal. The court ruled against the contention, and said: "It seems too plain for discussion that the word 'loss' [referring to § 2983], coupled as it is in the disjunctive with 'leakage,' applies precisely to such a case as the one before us. I cannot find any sound reason for believing that the Congress did not have § 2983 in mind when it enacted said § 20, as amended. It is obvious that § 20, especially as amended, refers exclusively to rate rather than weight." The circuit court of appeals differed from the circuit court in the application of § 2983. It held that the loss there provided for related solely to the loss of merchandise subject to duty, and such loss had not occurred. The court further held that the other terms of the section referred to actual reduction in the value or quantity of the merchandise itself. "It is clear," it was said, "that evaporation of moisture is not 'loss' sustained by merchandise." The case of Seeberger v. Wright & L. Oil & Lead Mfg. Co. 157 U. S. 183, 39 L. ed. 665, 15 Sup. Ct. Rep. 583, was referred to as analogous. The court also disagreed with the construction of the circuit court of § 20 of the customs administrative act, and held that by virtue of the proviso added to that section December 15, 1902 (stated later), duties should have been assessed according to the weight of the tobacco at the time of its withdrawal.
This history of the case exhibits the contentions of the parties and the elements of the contentions, and, it will be seen, the case is one of statutory construction.
First, as to Seeberger v. Wright & L. Oil & Lead Mfg. Co. supra, which is urged as controlling. The importation there was flaxseed. The proof showed that the seed contained dust composed of clay, sand, and gravel to an average of 4 per cent. The case turned upon the meaning of the word “draught” in § 2898 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 1919). It was assumed that the word did not apply to impurities, and it was said that the lower court was correct in assuming that the 27 S. C.-13.
The moisture which the tobacco in the case at bar absorbed cannot be said to be an impurity within the meaning of that decision, even though moisture in tobacco is a variable quantity and its amount can be estimated by weighing the tobacco at different times. Nor can it be considered as an independent, nontaxable substance, even though, as conceded in this case, it was absorbed on the ocean voyage. The statutes contemplate and apply to merchandise which may change in weight, and if the moisture in the tobacco in this case can be regarded as an independent substance,-so much "sea water," to use counsel's graphic phrase, a question of the application of §§ 50 or 33 could not arise. One or other of those sections was considered applicable from the beginning, and the importations regarded as controlled by it, as merchandise subject to duty by weight, and necessarily there was involved the question at what time the weight should be estimated,-at the time of entry or at the time of withdrawal from warehouse. To that question, then, we shall address ourselves.
It is said by counsel for the United States that, prior to October 1, 1890, duties were uniformly demanded and collected according to the weight of merchandise at original entry, citing in support of the assertion the custom regulations of 1884 and 1899. Upon that date (October 1, 1890) the tariff act of 1890 took effect. Section 50 provided, as we have seen, that goods previously imported, for which no entry had been made, and goods warehoused, for which no permit of delivery had been issued, should be subject to no other duty than if the goods were imported after the day the act took effect. It was also provided that, when duties were based upon the weight of warehoused merchandise, the duty should "be levied and collected upon the weight of such merchandise at the time of its withdrawal" (italics ours). A question arose as to the scope of the proviso,-whether it was restricted to the matter immediately preceding, that is, merchandise imported before the act took effect, or was of general application, applying as well to merchandise imported after as before the act took effect. The Attorney General decided that the latter was its effect. He said (20 Ops. Atty. Gen. 81, 82): Gen. 81, 82): "I am aware that under 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. 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 apThen 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 as conclusive the ministration of the customs laws. The word "entry" was substituted for the word "withdrawal," and necessarily thereafter duties upon merchandise there provided for were to be based upon weight at the time of entry. Nor do we see that there is any contradiction of this in other provisions of the statute. Certain provisions of the customs administrative act are, however, relied upon. The provisions of that act, hereafter quoted, originated in § 1 of the act of March 14, 1866 (14 Stat. at L. 8, chap. 17), and were carried carried into the Revised Statutes as § 2970 (U. S. Comp. Stat. 1901, p. 1950), which provided that merchandise
court said: "If other like goods had been imported at the time when these goods (the tobacco in question) were withdrawn, duty would have been assessed thereon according to their weight at such time." But the question in Mosle v. Bidwell was not the same as in the case at bar. The question now is not what rate of duty merchandise is subject to, or whether it is exempt from duty, but at what date its weight is to be taken as a basis of duty. And weight is a fact independent of the rate of duty. The proviso of § 20 of the customs administrative act, therefore, cannot be made paramount to the proviso in § 33 of the