170
FiU)ERALREPORTER ,
vol. 45.
he del).ied the right to invoke the same law to reduce the amount of recovery against him. federal couz:ts., allow the fllil amount of inteifest which a creditor .under t4e .l",ws of Illinois solely on the ground that interest is a,mattel' ofstate reglllation, those courts cannot consistently al· low interest on which, under the well-esta1:>lished law of that .state, do not draw interest. and judgnlent for the plaintiff for the amount of his coupons, wit,hqut interest. . ; ,
I
In 're BftLIN et ale D. NeW' :J?-ork.·· , J _'
(Oircw£t'
, ' . ,of tbe May 9, 1890" «An act providing fOr the elassifilllLtiGn of worsted cloths 8S woolens;iI',Under this 'act tbe 'Secretary of the treasury must finally clasaifJ"the merchandise'thereiil named, and that power is vested in no,,Qther ojJlcer. ' : , '" .,',1 ;.,\
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At 'Law.: :.Jl 'The ()fBallin,'l()$eph& Co;jItip()rted of RichmoIld, 21, .1890, into the;port .Of "New, X?rkcertaip'wO,fsted cloths, .posed.enhrely: ,w hlcb, returned by, tbe I1Ppraisers On the invoice:Q.s'fwwlen cloths," 80 cents, Rnd dutywas.thereupon assessed on aaidmerchandise by the collector at the rate of 35 cents per ofthe tariff pound and' sa 7per cen'tum:ad valorem, under act of March 3, 1883, (Tariff Ind. par. 362,) and the'act' of May 9; 1890 : ac; p/.'oviding fw:the classification. of worsted cloths $8 II, ':The duly appealed fromtbis Iil:$sessment of duty to the qf United States general appraisers, in of .section 14 ,of theaet of June 10, 1890, .entitled" An act to ,simplify the laws in relation to the collection the revl3nues.", The ,board of United States general.appraisefs affirmed ,the decision of the collector. The, importers thereupon, and under th!'l provisions Q( section,15 of tlle said act of June 10, 1890, took the for a review of the decision of the board Qfgeneral appraisers I:>y:the Vnited States circuit court upon tbeir return"nd the reC\:Il·d. Th,eimpp,rters, in their. protest" alleged: (1) That the said act of 9, 1899, ;\Yaanever passed according to law, because no quorum wRspresent in th,e house (2) .Said act was tleV:er passed accordingjo law, and never: became a law; because, whel). pa.ssed, a ml;'jorityof membersof'thebptlse of represep.tatives aqdit was ,certified to4!lve'peen passed when it had not of section 5"atit,! l.! ofthe constituBecause 'a quorun;q)f the house of reption of the United resentatives .didnot,voterupon,said act. (4) Because said act confers no power or authorit)" ,upon the collector, I;tssessAondtaked\lties upon
IN RE BALLIN.'
171
ad valorem.
the snidimportations althe rate ()f':35 cents per pound and 35 per cent. (5) Because, asa)natter oHaet, the secretary of the treasury had not seen the' goods, arid had never· in fact classified them for duty. (6) Because said act. does not repeal any act imposiog a pree:nsting rate of duty: upon said importation5. (7) Because said act dOe5 not and cannot operate to change the duty upon manufactures "wholly or in part of worsted," and not "in part of wool," as provided for in the act of March 3, 1883. (8) Because whether the secretary of tbe treasury has classified said goods as woolen cloths or riot does not altei:' the fact that they are manufactures of worsted, and dutiable accordingly. The importers thus attacked the validity of the act of congress approved May 9, 1890, and known as the "Dingley Bill," entitled" An Mt, providing for the classification of worsted cloths as WOOlens." This acts reads as follows: "That the secretary of the treasury be, and he 1s hereby, authorizt'd and directed W c)llSsifY,as woolen cloths all imports of worsted cloth, whether known under the name of 'worsted cloth' or under the Dllm6 of ' worsteds' or 'di&gon3J.s, " or otherwise."
Stephen a.Clarke anli Edwin B. 'Smith, for importers. Edward ,M"1kheU,< U. S. Atty., 8.od Henry Platt, Asst. U. S. Atty., for collector and government. The latter argued thilt while the contention of the importer is that the secretary of the treasury is directed by the act of May 9, Hl90, pt'rsonally to classify 'worsted cloths as woolens, the language of the act is snsceptible af a different cOhstruction. Section 248 of the United States Revised Statntes provides that "thest'cretary of the treasury shall froln time to time digest and prepare plans for the improvement and managl'mf'nt of the revenue, and for the support of the pUblic credit; shall superintend the collection of the revenue, '" ... ... and gl'nerally shall perform allsucb services relative to tbe finailct's as be shall be dirt-cted to pt'rform." Section 249 provides that "the st'cretal"y of the treasury shall direct thesllperintetJdence of 'the col· lection of the duties on imports and tonnage as he shall Section 201 provides that "the secretaryot the treasury shall make and issue from time to'time such instructions and regulations to the several colll'ctors. ... * '" He shall prescribe forms of entries,oaths, bonds, and other papt'rB, and rules andregulations.nl)t inconsistent with law, to be used under and in the eXt'cution and enforcNnentof tbe variolls provisions of the internal reVenUe ,laws. or in carrying out the provisions of laws relating to raising revernle, from imports, or to dutil'S on imports, or to warehousing.' i He shall give snch 'directions to collectot·s, and prescribe suchruJes and forOli! to be observed by them, as may 'lJeJ necessary for the proper execution oftheJaw," etc. Seetion '252 provides'that "the secretary of the tl'easury, under t}jed!rection of 'thepl"esldpnt, sllaH from time to time t!Stabllsh such regUlations, Dot incoDsistentwith lltw, 'as ,the president shaH proper, to secure a just, faithful; and impartial appraisal of all goods, Wares, and merchandise imported into the States," ,etc. Section 2652' proviqes thitt"it shall be the duty of all omears of thecllstoms to execute and carry into'effect all instruetions of the secretary, of the .treasury relative totbe eXt'cution of the. revenue laws; and, in tlase !any difficulty shall arise as to the true constructhe decision of the secretary tion or meaning of any part of tb,erevenue ofthetreuurj shall be conclusive und binding upon all customs. ", section 2949 provides thl1t ",the secretary of the'treasu'ry from time
a.
172
FEDERAI" REPORTER,
to time shall establish such rules and regulations, not inconsistent .with tM laws of the United to secure a jURt, faithful, and impartial appraisal of all merchandise imported into the. United States," etc. The secretary of the treasury is the chief officer and head of that department, and all revenue and customs officials are, in contemplation of law, his subordinates, assistants, or employes, and subject to his 'general direction and control in revenue matters. Article 556 of the treasury regulations reads as follows: "Collectors will make immediate report of the classification given at their ,respective ports to all importedgoodsllot enumerated in the tariff. When any portion of the law affeCting the classification of enumerated articles may be of doubtful meaning, collectors will in like manner report the classification adopted in such cases. Appraisers are required to report to the collector their opinion as to the proper classification of imported articles submitted to their examination, but in case of disagreement the decision of the qUl1stion with the flecretary of the treasury." Interpreting the act of May 9, 1890, in the light of existing statutes, congress, never intended that the secretary of the treasury should personally clasSify "worsted cloths," or any other merchandise, for duty, but that such classification was to be made, under his general direction, by the officers, his subordiilates; agents, and employes. whose particular duty it was, under the law and in the usual course of business, to classify such goods. It wuuld be absurd and impracticable for tim secretary of the treasury personally to engage in the duties of an appraiser or collector by hims,elf, inspecting goods at every port in this country, and passing jUdgment upon them, and formally announcing such judgment. The act itself operated to place worsted cloths in the samecategory cloths. as to classification and· rates of duty· . On May 13.1890, the secretary issued a circular calling the attention of the collectors of customs to this law. ,Treas. Dec. No. 10,020. This was a promu,lgation o(tbe Jaw, for the guidance of such officers. It is a rule that in the interpretation of statutes courts should not defeat leKislative intent by adhering. too rigidly to the letter, nor follow the mere language to consequences which are clearly absUl'q. Oates v. Bank,lOO U. S. 239. The meaning of the legislature in a statute may be extended beyond the precise words Used in the law,from the reason or motlve which the legielature proceeds, from the end in view, or the purpose designed, U. S. v. Freeman, 3 How. 556,565; U.I3.v. Buchanan, 9 Fed. Rep. 689; Aldridgev. Williams,3How. Ruggles v.Illinois, 108 p. S. 537,.2 Sup. Ct. Rep. 832; Ogdenv. St1'on,q, 2 Paine, 584; U. S. v. Wame1', 4 McLean, 463. Intent is to prevail over the literal meaning.of the words·. In 1'e New York ]Jist. Ry. ()o., 42 Hun, 621; v. Terry, 108 N. Y. 1.14 N. E. Rep. 815; In 1'e Mayor of New York, 99N. Y, 569, 2 N. E. Rep. 642. Legislative acts are not to be interpreted by the courts in a hypercritical ,and captious spirit. In the construction of. statutes the sense and spirit of .a statute prevails, and a construction will not be. put upon a statute which will rendel' it nugatory, if it is susceptible of a cons.truction that will giveit a reasppable operation and effect. Manu/acturip.g Co. v.McCollock, 24 Fed. Rep. 667. The object of this legislation was t<tlllakethe duty upon so-called" worsted cloths" th,e same as upon" woolen Iict of March 3, 1883, then in fOrGe, which provided cloths," under thE! for.a duty upon woolen cl,oths valued under 80, cents per. pound of 35 cents per pound and 35 per cent. ad valorem. Tariff Ind. par. 3q2, . A case had pre- . v. Magone. 41 Fe4. Rep. 921) in which viQuslybeen tried in this a,controversy over the proper ratllQf duty under the act of March 3, 1883. on this very class 01' goods, bad l:>!leD ,decided; and this court differentiated the goods, holding that the worsted clot,n was not properly classifiable as woolen cloth, but WaS properly dutiable (under Tariff Ind. par. 3(3) as a "man ufacture of worsted." at a lower rate of duty. );t d\)ubtless absurd to the
IN BE BALLIN.
173
national legislature that worsted cloths, used for the same purposes as woolen cloths, and dealt in by the same class of dealers, should be allowed to be im. ported into this country at R less rate of duty; that the wool carded and the wool combed, both being in substance wool, although legally differentiated in the tariff act of March 3, 1883, ought to pay the same rates of duty. The act of May 9, 1890, was passed to correct that inequality in the act of March 3,1883. It was a proper exercise of the legislative power. It was a correction of an apparent oversight in the act of 1883. Congress certainly had the power to authorize the secretary of the treasury to classify worsted cloths as woolen cloths. The act designates the official, and not the individual. to make the classification. It refers to the secretary of the treasury as the official head of the revenue department in the government. When it directs him toaat. it presupposes that he will act through his subordinates, collecton, revenUe officers, orotbers, whose duty it is to carry out the law, under his supervision, control, and direction. This is the sound and reasonable con.; struction of the law of 1890. Bearing in mind previous and concurrent laws, the history of this legislation, and the intent of congress to so change the law,that "woolen cloths" and "wu1'8tlld cloths" should pay the same rate of duty, and taking the words of. the statute in their plain. every-day sense, there can be no difficutyin com"' ing. to cmnclusion that the act of May 9, .1890; is valid, and effectuates ,the pnrposes which it was intended tosubserve. It is a familiar principle of law that what a man does by another who was duly authorized to act for hfm, or under his direction, he does by himself. The secretary of the treasury,by, his subordinates, collector, or other agent, in the performance of the duty assigned to them classified these goods for duty in the usual course of p'rocedUre. . : ' '
!
The next question presented is t1;Le' allegation that the aet of October 1, 1890, never, passed the house of representatives and senate. This includes the objections (1) that a quorum of the house of representatives was not pre,,ent when the vote was taken on the bill; (2) that a quorum of the house did not vote on. the .bill. In the Congressional Record of May 1, 1890, p.41SS; the prbceedfugs of the house of' representatives disclose the follOWing facts in taking the vote on the bill under consideration: Yeas, 138; noes, none; not voting, 189. "The Speaker. The clerk w1l1 announce the names of mem" bel'S present and not voting. The clerk read. [Here follows 75 nRlP6S.J The Speaker, The names. of the .members not voting, 75 in number, ;together with 138,.voting in the affirmative, being 213 in all, more than a quorum necessary UIider the constitution to transact business, the chair make$! the' following announcement of the vote: The yeas are 138, noes, none, and the b1l1 is passed.'" " This being a public record of the legislative proceedings, the court'is at liberty to take judicial notice 'thereof without formal proof being made. South Ottawa v. Perloo8, 94 U. S. 260. The proceedings unquestionably show a majority of all members to be present. A majority constitures a quorum to do business. Article 1, § 5, of the constitution of the United States provides that a majority of each house shall constitute a quorum to do business; that a smaller. number may adjourn from day to day, and may be authorized to compel' the attendance of members under' certain Each house may also the rules of its own"proceedings. EliCh house shall also' a journal of its proceedings. ,At the desire of one-fifth of those the yeas and DaY'S of the members of either house on any ques" tion shaUbe entered in the journal. The power of the house to make its own rl,l1esunder this constitutional authority necessarily embraeesthe auti'lority 'adopt any proper mode of ascertaining the presence of a quorum in
to
174
FEDERAL REPORTER,
the house, not expressly or impliedly prohibited by the constitution. The fifty-first congress, by rule 15, par. 8, determined the rule to be as follows: ",On the demand of any number,'or, at the of thesplIaketj1the names of members sufficient: to, make a quorum in the hall :of the house who do not vote shall be noted oythe clerk and recorded in the journal, and ra. ported to the speaker with the names of the members voting, and be counted and announced,in.determining the presence of a quorum to do business." The announcement made by the spE'aker on the passage of the bin in question was in conformity to this rule of the house of representatives. which had been determined and adopted under its constitutional power to detf'rmine the rules of its own proceedings, and to keep a jOUl'nal of its own proceedings. There was a majority of a quorum of the house of representatives actually present at the time. according to the journals of its pl'oceedings, which journal is presumed ·to speak the truth. There is no clause in the federal constitution w hieh curtails or limits.tbegeneral power of the house of representati \'e8 to make its own rules for its own proceedings. It has always been the law, both in England and in America, in reference to corporations, public and private,that a majority of·a· quorum of an· assembly actually present must control, aIlhough It'ss than a quorum .may vote. Rex v. Foxcroft, 2 Burrows, 10t7; (Jas 00. v. City of·Ra.,hvtlle, 121 Ind. 207, 23 N. E. Rf'p. 72; County ofOass.v. Johnson, 95U.S. 800; St. Joseph J.p. v. Rvgers, 16 Wall. &.A,.Corp. 126.127:; Grant, Corp. 71; 1 Dill. Mun. Corp; §§ 278. ,282; .Nortb Amer.'Rev. Sept. 1890, p. 372.8ee authorities cited in DeclBionof G. A. b7. LACOMBE, Judge, (ordll y.) There is nothing on the face of this act· indicating that it is intended to repeal, or in any way nlter, any act imposing customs duties. It is contended that in the existing state of afliJ,irs when this act was passed, in the fornler statutes, in the decisions of tbe courtS, and in tbe debat.es of congress, we mayfindsllfficient to warrant the conclusion that it the intention of congreSs by the passage of this act to deal with the question of the duty to be laid upon goods such as are imported herE', and to change their Btatus, so as to lay upon them a higberrate. Oonceding that for the purposes of this argument only, (and. it is only for the purposes of the argument that I am prepared to 'concede that proposition,) let us see with what machinery they undertake to. carry out that. iritent. There already existed an elaborate and well-considered 'scheme for appraising and classifying imported article,S by means of appraisers and their subordinates, who made examinations and reports touching, the component materials and values 9f goods; and by means of local officers (the collectors) in the respective ports where the goods came, Who made their own classifications relating to them ·. There. had been elauorated a sufficient scheme, which had been in force for many years, withtbe intention of securing by the machinery thus e,i:ilJ>loyed a faithful, just, impartial, aridtruthfulascerfa,i.nmentof the real facts of eachcllse, and of classifying the 'goods ac': cording to such facts as were thus ascertained. This act. however, proceeds 'Upon .entirely Iiovel theory. It provides e;tpreasly for a classification 'ih directnon.conforrility to the fa:cts. It authorizes an officer of the governmeht who mayflnd import to be in fact an article'whitlh under the. tilri;tf laws pays ot;1.e.. rate of duty to call it something else.
an
IN RE STERNBACH.
175
,which it is not, in- order to the revenue officers to levy upon it a rate 'of duty which that otherattic1e which it is not pays. Now this is a very extraordinary specieS of legislation, and, there is ,no reason why we:should be surprised to find that: congress has confided the exercise of those'peculiar functions to a very high officer of the government. When congress has expressly confined exercise, as it has the language of this act, to the seoretary ofthetreasu'ry, I donotthink that the courts are wamuited in finding, that ,power in;any other officer. I ,do not mean by that to suggest for one, moinent that under the ,phraseology' ofthia act it is the"duty of the secretary of the treasutyto himself examine the packages of goods, to handle orisee their contents; but; having been informed and 'advised as to, the.facts in the Bame way in' which he is informed and advised upon any' facts upon which he is required to pass, by the examination ,and report olsuch trustworthy subordinates as. he may' select,1the final classificatidnof thepanicilla:r articles is one lobe made byNm.·, The return here distinctly 'finds.as a fact that he reached no suchcoricl:usion, nor undertook to do so, iIi' the case oithe impol!tationshereinvolved." For 'that reason, 1 think that his,action cannot be, sustaillGdi. The, ,decision of'the board: of:general 'appraisers, therefore, 'in this case is reversed. ' , I;" '::i Iii
I:n re
STERNBACH
etal.' 27,1891.) ' " "",' ., '," ..'
'ii!"(C{rctliU Court, '&,D. New York. Cu8TOII8DVTIBa., ,i":,',
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lze dutiea on'imports, and for other purposes, II heW to be: constitutional.. (;
The tarlffact of Octoberl,181lO, entitled "A.n aetto redulie the revenue ana equal. . .. ;.:,.;:.... r
At Law. ; , The flxm of R. Hemnan, Sternbach & 00. onOctober.7, 1890, imported ,certain merchandise by the steamer Fulda into the port of New YOllk, which was returned by the appraiser of the port on the invoioe ored cottons and manufactures of flax." The collector of the pdft of New York assessed duty on this merchandise und.er the provisions of paragraphs 348'and 371 of the act of October 1,1890, entitled ".A.1;lact ,to reduce the revenue and equalize duties on imports, and for other pur.poses." , Theimporters !duly,protested against such liqUidation, assessment, and ascertainment of- duties by the collector. In their protest ,they claimed that the merchandise was dutiable\lllder paragraph 320 of' Schedule Tof the ta.riffactof March 3,1883, for the reason that the ..said li.ct.ofOctoher 1. 1890, was unconstitutional and void. An appeal was duly taken by the importers from the decision of the collector to ,the board 011 United StatesgeIieral appraisers, under the provisionsGf ;the act: of, :Jiune 10; 1890, entitled" An-act to simplify the laws in re'lation, to the collection of the revenues." The board of apprais-
176
ers affirmed the decision of the collector, and held the act of OCtober 1, 1890, to be constitutional.· The importers applied to the United States circuit court for the southern district of New York for a review of the questions of laW-and fact involved in such decision, whereupon, and on the order of the court, said board returned to the court the record and the evidence taken by them, together with a certified statement of the facts involved in the case, alld ,their decision thereon. Upon the hearing counsel for!the importers contended as follows: (1) That act of March 3, 1888 is not, and never has been, repealed; (2) that,the act of October 1, 1890, never passed the house of representativesand senate; (3) that the biUwhich passed the house ,of representatives aridsEmate was never presented to the president, as required by the constitution, and has never been signed or approved by him; (4) that thebillwhichwRs presented to the president, and purporting to be signed by him on theist of ',October, 1890, and now on file in the state department at Washington, never in :fact passed' the house of representatives'or ,the senate of the United States, as presented to said president, but was ;other and different from any bill which actually passed said house,ef representatives aRd senate; .(5) that the alleged act of October 1, 1890, is unconstitutional and void by reasonef .the third section thereof; (6) that the power purporting to be given to the president by said section to continue to suspend and impose duties, or to do either of said acts, is a power vested by the constitution in congress alone, and cannot be lawfully delegated to the president; (7) that the said alleged act of October 1, 1890, is ,uncODstitlltional a?d void by reason of the provisions contained in section 1 of Schedule E, par. 231, of said act, relating to bounties on sugar; (8) ,that congress· had no power to direct, enact, or authorize the payment out of moneys in the treasury, raised by ta,x,es,<>r or otherwise, of a bounty cents a pounc}, or of any other sum whatever,nor had congress anypowel' toauthorlw the secretary of the treasury to draw warrants on the treasurer of the United States for such sums as may be necessary to make payments of bounties, as providM iIi said act, under section 1, par. 235; of said act; nor to impose the duties mentioned .in ;the act for the purpose, in whole or in part, of raising'moneys to pay such bounties. , The United States district attorney in reply contended: (1) The act of October 1, 1890, is an entirely new tariff act, repugnant in many Of its provisions to, the former tariff act of March 3; 1883, and covers the whole subject of the earlier act, and embraces new provisions, which -plainlyshowt4at it was intended as a substitute for the prior act of 1883. -When a statute covers thewhole subject-;matterof preceding statutes,itvirtuaHy repeals them without any expressedirepealing clause. Butlerv. R'U88el,8Cliff. 251; Davie88 v. Fairbairn;S"How. 636; Morlotv. 1 Blatchf. 608; U. S. v.; Terra Cotta Vase8,18 Fed. Rep. 508; U. S.v. Tynen, U Wall. 88; Norris..". Orocker, 13 HaW. 429; U. B.v. Cheeseman, 3Sawy.424; King v. CorneU,106 U. S.395, 1 Sup. Ct. Rep. 312. Section 55 of the act of October 1, 1890, moreover provides that "all lawsqnd,parts of laws inconsistent with this act are hereby repealed. II
177
(2) The omission, accidental or otherwise, in the bill, as signed by the president, of a part of section 30, in relation to a drawback or rebate upon smoking and manufactured tobacco and snuff, did not affect the validity of the law. Itrelated to ueparate and severable subject. That wbich'1emllined was complete in itself, and was capable of being executed wholly independent of the omitted clause. Both houses of cOngress passed all of the sections in the bill which the president signed. Moreover, the president signed the bill which came to him from congress after being engrossed, and submitted, as engrossed, to both houses of congress in the usual course of procedure. The bill as signed by the president was the same bill;as w3scertified to bim by the presiding officer of both houses of congress. It was therefore the same bill as finally acted upon by both houses of cODgresll.' (3) It is not an abdication of legislatiVe power for congress to authorize the executive to suspend",the ope.ratiol)-ofa: law, under. certain,circumstances, by proclaml;ltion;' with the that another law, fixed in its terms, shall tpereupon 'go iinmediately into effect. This is not deemed a vesting of legislative power hi the president; it is simply making alaw,certain and fixed iinitS upon a given contingency, the existence of which is'tb. be detern1inedby the president. The president does not legislate;'he merely'executes the law in the manner directed by congress. (4) For purposes of argument, if the two sections or clauses of the act of October '1, .1890, attacked by the importers in this action, were considered to be uncoost1tutional, it would be inconsistent 1Vith all just principles ofconstitutionallawto adjudge other,.and independent sections of the same act void. The other sections of the act, although associated, are Dbt conhectedwithJ;) or dependent upon, these two paragra,phs. Constitutional and unconstitutional provisions maybe contained in the S8'Dle section, and ,yet b,e perfectly distinct and separable, although the fhst may stand, and the last fall. The point is not whether they are contained in the same section or the same act,-for the distribution of the.sections or paragraphs.is purelyartificial,-,..but whether they are iqseparal>ly connected in substance. Com. v. Hitchi:ng8,5 essentially Gray, 482; Willard v. People, 4 Scam. 461; Hageratoum v. Dechert, 32 Md.. 369; Peoplev. BuU, 46 N. Y. 57; Peoplev. Kenney, 96 N. Y. 294; Const. Lim. (6th Ed.) pp. 210,211; and see Opinion of Boat:,dof United State8 General Appraiser8 of December 15, 1890, G. A. 203. Statutes which are constitutional in part only will be upheld and enforced so far os they are not in conflict with the constitution, provided the allowed and prohibited parts are severable. Packet Co. v. Keokuk, 95 U. S. 80; Bank v. Diulley,2 Pet. 526; Duer v.. Small, 17 How. Pro 201; Golden. V. Prince, 3 Wash. C. C. 313. (5) In passing on the constitutionality,of 8iD act of congress, all the presumptions are in favor of the law, and c"Qurts will not ptonouncean act unconstitutional unless its incompatihility is clear, decided; and inevitable. ,Par8on8 v.Bedfurd, 3 Pet. 433; Sarony V. Lithographic (]p., 17 Fed. Rep. 591; U. S. V. Coomb8, 12 Pet. 72.; Fletcher Cmnch. 87; Butler V. Penn., 10 How. 402. Stanley, Olt;lrke Smith, for importers. v.45F.no 3-12
178
FEDERALREPOl'l.TER,
"01. 45.
, ' Edward Mitchell, U. S. Atty., and Hrmry"O. Platt; Asst. U. S. Atty., for 'collector. . , " ,/ LAcoMBE,CireuitJudge, (orall'/l') In this case the board of general appraisers affirmed the ,decisioll of the collector. Thiseaurt affirms their decision. . ,\.
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UNITED STATES ())!.atIrlct oowrt, L '.
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KEOXUK&H. BRIDGE Co. D., . February 7, BY OJ',WAH.
A bridge ha\'ing' been bUilt aud maintaine<Hn acoordl¥l1ce With 'the requirements of an ajlt 9f,cpngresl, lecI:etaryof 'Wllol:.oanno4; ,it all, obstruction to igationl.lI.nd require it to be changed,. ,remoc}e1ed, 0,1,' rebuilt1 under the act ot con· 1'1, 1ll88, U. S: Stiat p. " h e ahllill have that is a,n, to free nadga.. tion, or wheJ;e there in passing the draw"opening or. raft-span," thesllO. 'retary of 'war shall give! notice ieqUiringthe bridge"tO' lie' altered, so as'to render 'DBviJtationthrO!lgh orUll-4er it free, 68/ty, and,unobstru4:lted,-anil that 1;Jleowner of any such bridge shall beli,able to fOr willfullY-failing to remove. the bridge, oJ' to cause the Dellellsary altet&tlODB to be made.··, .' " lU1l,vaUd ,in anyoalle, notiCe the ,.l. secretaJ;Yof war must 'POIDt out whatai1terations are required to be made;' and a . ,',notiCEi i500illlufticieut walch requires: theiOwners' " to BO alter Baid bridge as torender; it free, el;\llY. and unobst,ructed, n t.he .notie.e contain's a'reCital that "tl111 bridge obstruction to. ftee navigatlon by reason of. itBlocation, which ,at stages ofwaterpel'lIlittiug naiigatioDoverthe Des Moines west draw rest 8. BTATUTEB-R1IPBAL-RJiL1h\8B OJ' PBNllTllls.
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L'SAMB-NOTJOBOP, ALTIIlBATIONS REQum!IlD::. ,.'
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By the eXPress provisi!ol!( ,of Rev. 1St. U,S. SIS,. repeal ofa .statute doeanot release any penalty, or unless the repe8llng act so provides. ' , . ' ':",'" '! .e,',.,:··· ',.', '.":
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At Law. Action peM:lties uilder l:ir6visions ofilections9 and 10 of the act of of August!l, 1888. On topetiYoh.:· " , , ,.. : Lewi.." S.Dist. Atty., for :elaintift . . ". . ' . ' H. H.Tritnble, W. J; and lamesa.' Davis, for defendant'. ! ! ;
"Sec. 9.', That the secretary Of war shall have good reason to believe that' any' railroad; 'Or 'Other 'DOW constructed. or ",hichmay be 'bereafter ,eoristru(lted, any of the: navigable water-ways of' the, United States, iE/ an:obetruction to thefreena'ligation of such waters by reason of inbl.'Jght., ",idtb'Clf, iSptln, or where. Ulere is diftlculty in .. steamthe duty of tQ give noboats, or Cltber. tice to or corpo):ations .ownll1g said bridge to' 80 alter th&' sanie as torendel' navigation: through 'ofullder it 'fr,ee" e,inly, and unobstructed; and in giving such notice he lilball 'prescribe in each case reasona-
SHIRAS,1. . In the act of congress ofAugust 11, i888, (25St. p. 424,) it,isprovided:' " ..... . . '.. ,."
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