ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT' OF NEW YORK.
This case presents for determination the question of the constitutionality of a statute known as the tea inspection, act, approved March 2, 1897, 29 Stat, 604. The act is copied in full in the margin.1
On January. 20, 1902, eight packages of tea were imported into the port of New York, per the steamer Adana, by a firm of which the plaintiff in error was the general partner. The tea was entered for import at the New York custom-house, and was stored in a bonded warehouse. At that time certain standards, enumerated in the margin,2 which were selected by-the board of tea inspectors, had been put in force by the Treasury regulations under said act of March 2, 1897.
The eight packages of tea in question were embraced in the class known as “Country green teas,” numbered 7 on list of standards. The tea was examined on February 7, 1902, and was rejected as “inferior to standard in quality.” By the term quality as thus used was meant the cup quality of the tea, that is to say, its taste and flavor. An appeal was taken by the importer to the board of general appraisers, and that board, on March 10, 1902, certified to the collector that “the said tea is inferior in quality to the standard prescribed by law,” and accordingly overruled the appeal. The firm was notified of the decision on March 12, 1902.
In November following the plaintiff in error — who had acquired the interest of his partner in the tea — applied to the eolléctor for permission to withdraw the tea for consumption, on payment of the.duties. The request was refused. Application was then made for the release of’the tea from bond in order to export it. This was also refused on the ground that the tea had been finally rejected under the act of March 2, 1897, more than six months previous to the application. The plaintiff in error was also notified that the tea woúld be- ordered to the public stores for destruction.
This action was commenced in the Supreme Court of the State of. New York, county of New\" York, against the collector of the port of New York, to recover damages for the alleged wrongful seizure, removal and destruction of the tea in; question. Averments were made of the importation, storing, tender of duties and refusal to accept the same, and of demand for the tea and refusal to deliver. A general denial was filed. The action being on account of acts done by the defendant under the revenue laws of the United States, as collector of customs, it was removed on his application to the Circuit Court of the United States for the Southern District of New York.
At the trial of the case before Circuit Judge Coxe and a jury, the exhibit reproduced in the margin .was introduced in evidence.1
As indicated on this exhibit, the Country green teas thereon designated were arranged in their order of quality, from the highest to the lowest, No. 1 being the highest grade, and No. 17 the lowest. The designation in each perpendicular column represented the teas grown in a particular district, and all the teas enumerated on the same horizontal line were considered as being equal in grade..
The chairman of the Board of Tea Experts of the Treasury Department testified that the standard for Country green teas in force at the time the tea in question,was imported was Hyson of a Fine Teenkai, or No. 6 on the list of standards, and that before fixing this standard “the board made diligent search for any Country green teas of lower grades — Hysons of lower grades — of pure teas on the New York market obtainable by the trade, and were unable to find any.” The term Hyson, it may be observed, indicated that the tea was made out of the coarsest leaves; For the plaintiff it was testified that the quality of the tea in .controversy'corresponded in quality with,the grade No. 7 on’ Exhibit 8; while the evidence for the government was to the effect, that it would grade'as Fair Fychow, No. 11 on Exhibit 8. The testimony also tended to show that .the tea in question differed only in respect to the cup quality from the government standard; the evidence for the government being that it was “a tea of a decidedly low grade, ... a pure tea, but of low quality.”
At the close of the evidence the court overruled a motion to direct a verdict for the plaintiff, and an exception was reserved'. Thereupon the court, granting a motion on behalf' of the' defendant, instructed that the only question was as to the constitutionality' of the statute under which the defendant, as collector of the port acted, and directed a verdict in his favor. Upon the judgment entered on the verdict, which was returned in accordance with this instruction, the case was brought directly to this court.
The act is unconstitutional, because (1) it makes the right to import tea depend upon the arbitrary action of the Secretary of the Treasury and a board appointed by. him, and (2) excludes from import wholesome, genuine and unadulterated tea, and (3) discriminates unequally in the admission of the different kinds of teas for import, and in the right -to sell and purchase tea. The act confers upon the secretary and the board the •uncontrolled power to fix standards of purity, quality, and fitness for consumption, and thus to prescribe arbitrarily what teas may be imported and dealt in.
For cases on this statute, see Sang Lang v. Jackson, 85 Fed. Rep. 502; Cruikshank v. Bidwell, 86 Fed. Rep. 7; S. C., 176 U. S. 73; Buttfield v. Bidwell, 94 Fed. Rep. 126; S. C., 96 Fed. Rep. 328.
The words “fitness for consumption” give the .Secretary of the Treasury unlimited power to exclude teas according to his idea of fitness for consumption. An article which one man or class of men might regard as entirely fit for consumption might be. regarded by another man or class of men as utterly unfit.
It appears from the history of the legislation that it' was the intention of Congress to confer unlimited power upon the Secretary. See act of March 2, 1883, c. 64; act of 1890, c. 339; and see Buttfield cases, cited supra.
The constitutionality of the statute was not raised in the former proceedings. The application proceeded upon the assumption that the law was constitutional.
The act as heretofore construed excludes all teas from import except such as are equal to standards fixed by the uncontrolled will of the Secretary of the Treasury on the reeomipiendation of the board of appraisers.
The power to regulate -commerce with foreign nations and between the States is subject to such limitations as axe prescribed by the Constitution and its amendments, among others the Fifth. Gibbons v. Ogden, 9 Wheat. 196; Cooley v. Port Wardens, 12 How. 310, 319; Monongahela Navigation Co. v. United States, 148 U. S. 336; Councilman v. Hitchcock, 142 U. S. 547; Interstate Commerce Commission v. Brimson, 154 U. S. 447; United States v. Joint Traffic Association, 171 U. S. 503, 505; Dooley Case, 188 U. S. 321, 362; O’Neil v. Vermont, 144 U. S. 323, 371; United States v. Williams, 2 Hall L. J. 255; S. C., 28 Fed. Cas. 614; 1 Von Holst Const. Law, 204, 211; Story on Const. Law; Potapsco Guano Co. v. North Carolina, 171 U. S. 345; Cooley Const. Lim. (6th ed.) 720.
As to whether the power to regulate commerce is exclusively with Congress, or whether the several States, in the absence of Congressional legislation, may enact police laws which, in effect, regulate commerce, see Wilson v. The Blackbird Creek Marsh Co., 2 Pet. 245; New York v. Miln, 11 Pet. 182; The License Cases, 5 How. 504; The Passenger Cases, 7 How. 559. The several States may, in the absence of national legislation, pass police laws upon many subjects which do, in effect, regulate commerce. Southern Steamship Co. v. The Port Wardens, 6 Wall. 33; Bowman v. Chicago &c. Ry., 125 U. S. 489; N. Y., N. H. & H. R. Co. v. State of New York, 165 U. S. 631; Reid v. Colorado, 187 U. S. 137.
General police power being exclusively within the control of the States Congress cannot exercise such general police powers under the power to regulate commerce. Lottery Cases, 188 U. S. 364, dissenting opinions; License Cases, 5 How. 594, 599. It is not within the competency of Congress to prohibit trade between the States in a wholesome article of commerce, or to place such interstate commerce in the arbitrary control of an individual or of a board. J. R. Tucker, 4 Ry. & Corp. L. J. 290.
However extensive the powers of Congress may be over commerce with foreign nations, the laws which it makes for carrying into execution these powers must be “necessary .and proper.” Const. Art. 1, sec. 8, par. 18; McCulloch v. Maryland, 4 Wheat. 421; Legal Tender Cases, 12 Wall. 573.
-As to extent and definition of the police power the point at which the demands of government thereunder are restrained by the paramount constitutional guaranties of liberty and property cannot be fixed, but must be left to be determined by the process of.exclusion, as applied to particular cases; and the question whether that limit has been overreached in a particular instance must always be a judicial question. This proposition, although now supported by the weight of authorfitjq has not at all times met with approval: Powell v. Pennsylvania, 127 U. S. 678. But see Marbury v. Madison, 1 Cranch, 137, 176; Smyth v. Ames, 169 U. S. 468; Lawton v. Steele, 152 U. S. 133; Holden v. Hardy, 169 U. S. 366; Cotting v. Goddard, 183 U. S. 83, 86; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 558.
As the Constitution of the United States is the supreme law of the land, anything in the Constitution or statutes to the contrary notwithstanding, a statute of a State even when avowedly enacted in the. exercise of its police power must yield to that law.
This opinion is confirmed by the latest and best considered opinions of the state courts. Noel v. The People, 187 Illinois, 587; Ritchie v. The People, 155 Illinois, 98; Ruhstrat v. The People, 185 Illinois, 133; Gillespie v. The People, 188 Illinois, 176; Bessetle v. The People, 193 Illinois, 334; State v. Chicago, M. & St. P. R. Co., 68 Minnesota, 381; In re Jacobs, 98 N. Y. 98; People v. Marx, 99 N. Y. 377; People v. Gilson, 109 N. Y. 389; Waters v. Wolff, 162 Pa. St. 153; Am. & Eng. Ency. of Law (2d ed.), vol. 22, p. 937.
Some enlightenment upon this subject may be found from the history of the tariff- rate litigation in this court. Munn v. Illinois, 94 U. S. 113; Railroad Commission Cases, 116 U. S. 307, 331; Covington &c. v. Sandford, 164 U. S. 578.
The act violates the Fifth Amendment, because it permanently deprives the plaintiff and other citizens of their right to trade in a beneficial and wholesome article, except at the uncontrolled will of the Secretary of the Treasury and a board 'appointed by him.
The right to trade, is a natural right. Mitchell v. Reynolds, 1 P. Williams, 181, 188; Yick Wo v. Hopkins, 118 U. S. 356; Gundling v. Chicago, 177 U. S. 183, 187; Crowley v. Christenson, 137 U. S. 86; Noel v. The People, 187 Illinois, 587; People v. Warden, 157 N. Y. 116; Sioux Falls v. Kirby, 25 L. R. A. 621; Live Stock Dealers v. Crescent City Live Stock &c., 1 Abb. N. S. 399; S. C., Fed. Cas. No. 8408; People v. Marx, 99 N. Y. 377.
The right of a citizen to carry on a lawful business cannot be placed under the arbitrary and uncontrolled will of an individual or board. Cicero Dumber Co. v. Cicero, 176 Illinois, 9; S. C., 42 L. R. A. 696; Harmon v. Ohio, 66 Ohio St. 249; S. C., 58 L. R. A. 618; Noel v. The People, 187 Illinois, 587; Colon v. Lisk, 153 N. Y. 188, 197; In re Grice, 79 Fed. Rep. 627; State v. Ashbrook, 154 Missouri, 375; N. Y. S. U. Co. v. Dept. of Health, 61 App. Div. N. Y. 106.
This is .not inconsistent with anything decided by this court under the Alien Exclusion laws, Which rest on the power of Congress to exclude aliens which is incident to every sovereign power. Lem Moon Sing v. United States, 158 U. S. 538; Chae Chan Ping v. United States, 130 U. S. 581; Nishimura Ekiu v. United States, 142 U. S. 651; Fong Yue Ting v. United States, 149 U. S. 698; Wong Wing v. United States, 163 U. S. 228; United States v. Wong Kim Ark, 169 U. S. 649; or with the legislation making the decision of immigration or custom officers against the right of aliens to enter the country final. Such laws applied to citizens would be unconstitutional. United States v. Wong Kim Ark, 169 U. S. 649.
This statute does not fall within the. police restrictions and prohibitions upon universal, harmful and dangerous pursuits or with the proper regulations of professions, trades and industries, although innocent and beneficial.
At commondaw a man.is held to warrant impliedly that he is competent to perform the service which he holds himself out as competent to perform,- and if one employing him suffers damages by reason of his want of skill, he is liable therefor. The statutory provisions are intended to safeguard the community against the .want of skill which is actionable when resulting in damages.
The rules adopted by any board for the admission of persons to such pursuits must be adapted to and be suitable for the determination of such fitness and skill. Requirements which have no such relation to such calling or profession, or which are unattainable by reasonable study and application, or which are arbitrary, deprive one of his right to pursue a lawful avocation, and statutes permitting such requirements are invalid. Dent v. State of W. Va., 129 U. S. 114; Harmon v. Ohio, 58 L. R. A. 618; S. C., 66 Ohio St. 249; Noel v. The People, 187 Illinois, 587; Gundling v. Chicago, 177 U. S. 183; Minn v. Fleischer, 41 Minnesota, 69; City of Monmouth v. Popel, 183 Illinois, 634; Cumming v. Missouri, 4 Wall. 377; Ex parte Garland, 4 Wall. 333.
No such standard can be applied to teas.
The action of such boards as are referred to is open to review by the courts, Dent v. West Virginia, 129 U. S. 114, 125; Rietz v. Michigan, 188 N. Y. 505, but the proceedings of the Secretary in fixing the standings are not reviewable by certiorari, People v. Gage, MSS. opinion, nor by bill in equity, Sang Lung v. Jackson; Buttfield v. Bidwell, supra, nor otherwise.
Apart from the arbitrary power lodged with the Secretary, the act is unconstitutional because it prevents the plaintiff and others from dealing in a wholesome and ordinary article of commerce, and destroys a trade in which he and others had been engaged. It has never been decided that under the police power a perfectly harmless trade could be prohibited. Austin v. Tennessee, 179 U. S. 343, 347; Lottery Case, 188 U. S. 321, 362; Matter of Jacobs, 98 N. Y. 98; People v. Biesecker, 169 N. Y. 53; People v. Hawkens, 157 N. Y. 18; People v. Marx, 99 N. Y. 379. A presumption of protection of health has sustained some acts, Powell v. Pennsylvania, 127. U. S. 678. But see other cases holding oleomargarine statutes unconstitutional. Schollenber v. Pennsylvania, 171 U. S. 1; Collins v. New Hampshire, 171 U. S. 30. And as to other matters, Minnesota v. Barber, 136 U. S. 313; Brimmer v. Rebman, 138 U. S. 78; Railroad Co. v. Husen,. 95 U. S. 465; Allgeyer v. Louisiana, 165 U. S. 578.
That the Legislature may not, under guise of police regulation, prohibit trade in wholesome articles is supported by other authorities. Dorsey v. Texas, 40 L. R. A. 201; Helena v. Dwyer, 39 L. R. A. 266; Baltimore v. Radecke, 49 Maryland, 417.
Cases like Plumley v. Massachusetts, 155 U. S. 461, 476; People v. Arnsberg, 105 N. Y. 123; Booth v. Illinois, 184 U. S. 425; Otis v. Parker, 187 U. S. 606, are not in conflict with this position.
The constitutional validity of a law is to be decided not by what has been done under it, but what may by its authority be done and if the act be construed according to its language as interpreted by the courts below the Secretary and the board have the right to fix a standard which will exclude wholesome tea. Stuart v. Palmer, 74 N. Y. 183, 188; Montana Co. v. St. Louis, M. & M. Co., 152 U. S. 160, 170; People v. Mosher, 163 N. Y. 32, 42; Colon v. Lisk, 153 N. Y. 194; Gilman v. Tucker, 128 N. Y. 190.
The act is unconstitutional because it discriminates unequally in the importation of different kinds of tea and, therefore, denies the plaintiff the equal administration of the laws. . It is a sumptuary law and interferes with the right of a man to do what he will do with his own. Cooley Const. Lim. (7th ed.) 549; People v. Budd, 143 U. S. 517. It is a weapon which may be used to destroy the business of competitors. Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 558; People v. Marx, 99 N.Y. 380.
This law ought not to be sustained because the establishment of this precedent will open the door to methods of government which experience has shown to be fatal to liberty. Boyd v. United States, 116 U. S. 635.
The'act is unconstitutional because it attempts to delegate to the Sebretary of the Treasury and a board named by him legislative powers which can only be exercised by Congress.
The power to regulate commerce cannot be delegated. Stoutenbergh v. Hennvick, 129 U. S. 148; Robbins v. Shelby County, 120 U. S. 489; Asher v. Texas, 128 U. S. 129; Dent v. United States, 71 Pac. Rep. 920; United States v. Blasingame, 116 Fed. Rep. 654. But see United States v. Dastervignes, 118 Fed. Rep. 199; United States v. Keokuk Co., 45 Fed. Rep. 178; United States v. Rider, 50 Fed. Rep. 406; United States v. City of Moline, 82 Fed. Rep. 592; Harmon v. Ohio, 66 Ohio St. 249; S. C., 58 L. R. A. 618; Schazlin v. Cabaniss, 67 Pac. Rep. 755; Dowling v. Insurance Co., 31 L. R. A. 112; O’Neil v. Insurance Co., 166 Pa. St. 71; Adams v. Brudge, 95 Wisconsin, 390; Barto v. Himrod, 8 N. Y. 483; Field v. Clark, 143 U. S. 649; In re Kollock, 165 U. S. 526; United States v. Eaton, 144 U. S. 677; Kilburn v. Thompson, 103 U. S. 168, 191; Miller v. Mayor, 109 U. S. 385.
While the legislature may delegate .powers not legislative which it may rightfully exercise itself, Wayman v. Southard, 10 Wheat. 43, it cannot under the guise of conferring discretion confer an authority to make the law.
By this statute all teas are excluded from import. No one has a right to import tea until the Secretary makes a standard. He, therefore, makes the right.
Executive officers are frequently empowered to make regulations to carry into effect duties imposed upon them.. These are rules and methods of administration not laws,. The is not confined to establishing a standard of purity Only. Morrell v. Jones, 106 U. S. 466; United States v. Eaton, 144 U. S. 677; United States v. Three Barrels of Whiskey, 77 Fed, Rep. 963.
It has been repeatedly held that under the power to make regulations the Executive can neither extend nor contract the law. Balfour v. Sullivan, 19 Fed. Rep. 578; Pascal v. Sullivan, 21 Fed. Rep. 496; Siegfried v. Phelps, 40 Fed. Rep. 660, and cases above cited.
The cases cited by defendant in error can be distinguished from this case.
The act. is unconstitutional in not providing for notice and an opportunity to be heard before the rejection of the ■tea. x
The act itself must provide for the notice, if not specifically it should fix the time and place for the hearing. The Railroad Tax Cases, 13 Fed. Rep. 722, 752, 753; Kuntz v. Sumption, 117 Indiana, 1; S. C.,2 L. R. A. 655; Reetz v. Michigan, 188 U. S. 505, 509; Stuart v. Palmer, 74 N. Y. 186. Voluntary notice will not suffice, because what is conferred as a favor to day may be withheld tomorrow. As to what is due process of law, see Turpin v. Lemon, 187 U. S. 58; Hagar v. Reclamation District, 111 U. S. 701; Simon v. Craft, 182 U. S. 427, 436; Lent v. Tillson, 140 U. S. 316; Davidson v. New Orleans, 96 U. S. 97, 107; Palmer v. McMahon, 133 U. S. 66; Passavant v. United States, 148 U. S. 214, 222.
This is not a proceeding for the collection of public revenue, in which cases summary remedies may be used.which could not be applied in cases of a judicial character. King v. Mullins, 171 U. S. 429; Bells Gap R. R. Co. v. Pennsylvania, 134 U. S. 232, 239.
The act is unconstitutional because it authorizes the confiscation of the importer's property without due process of law, as was the fact in tlie Stranahan case.
These teas were not a nuisance. Yates v. Milwaukee, 10 Wall. 497.
There was no trial as to whether the teas were lawfully rejected and whether the time for their removal had expired. None of these or other questions were concluded by the finding of the board of general appraisers. Colon v. Lisk, 153 N. Y. 133; Peck v. Anderson, 57 California, 251; Dunn v. Burleigh, 62 Maine, 24; King v. Hayes, 80 Maine, 206; Lowry v. Rainwater, 70 Maine, 152; State v. Robbins, 124 Indiana, 308; Ridgway v. West, 60 Indiana, 371.
In Buttfield v. Bidwell (No. 296), the evidence establishes a case of personal liability against the defendant.
The teas having been entered for import at the. customhouse, were in the control of the collector. Conrad v. Pacific Ins. Co., 6 Pet. 262, 281; Tracy v. Swartwout, 10 Pet. 80.
It is not sought to hold the collector liable for the negligence, misconduct or other wrongful act of a subordinate official, but for duress' of goods under a duty imposed upon him by an unconstitutional law. United States v. Lee, 106 U. S. 196; Stanley v. Schwartz, 147 U. S. 508, 518.
Officials acting under unconstitutional statutes which are ineffectual to.protect them, are liable for damages sustained by their wrongful act or where officials have been restrained from proceeding to enforce such unconstitutional law. Osborn v. Bank, 9 Wheat. 738; Poindexter v. Greenhow, 114 U. S. 270; Pennoyer v. McConaughy, 140 U. S. 1; Smith v. Ames, 169 U. S. 466; Scott v. Donald, 165 U. S. 56; Tendal v. Wesley, 167 U. S. 204. The same thing is true whenever an official, exceeding Ms lawful powers, inflicts an injury under color of office. Siegfried v. Phelps, 40 Fed. Rep. 660; Leslin v. Hedden, 28 Fed. Rep. 416; Pascal v. Sullivan, 21 Fed. Rep. 496.
The rule that an officer is not liable for the tortious acts of Ms subordinate has no-application where the act performed is a duty imposed by a law. Cleveland &c. Ry. Co. v. McClung, 119 U. S. 454; Belknap v. Achild, 161 U. S. 10, 18; Iselin v. Hedden, 28 Fed. Rep. 416; Head v. Porter, 48 Fed. Rep. 482.
Where a public officer has established a 'regulation in the course of business that he will not do a certain act except upon certain terms wMch are illegal, or that he will not accept payment except upon conditions that he has no right to impose, a -tender and demand are waived. United States v. Lee, 106 U. S. 196; Swift v. United States, 101 U. S. 22.
In the Seven Package case the plaintiff in error is not es-topped by giving a bond under duress, from questioning the constitutionality of the act. If the act was unconstitutional the bond was plainly void as being without consideration, and extorted by duress, and the giving of the bond under such circumstances would not operate as an estoppel. O’Brien v. Wheelock, 184 U. S. 450; Coburn v. Townsend, 103 California, 233; Am. & Eng. Ency. of Raw (2d ed.), vol. 4, p. 667.
' If the act is unconstitutional for any of the reasons argued it is wholly void because it is impossible to sever the invalid provisions from the valid provisions, if there be any. Pollock v. Farmers’ Loan & Trust Co., 158 U. S. 636; Spraigue v. Thompson, 118 U. S. 93, 95; Trade Mark Cases, 100 U. S. 98.
This is the last of a series of cases which have been brought in different forms for the purpose of testing the constitutionality of the tea-inspection act of March 2, 1897, 29 Stat. 604. Sang Lung v. Jackson, 85 Fed. Rep. 502; Cruickshank v. Bidwell, 86 Fed. Rep. 7; 176 U. S. 73; Buttfield v. Bidwell, 94 Fed. Rep. 126; 96 Fed. Rep. 328; United States ex rel. Hamilton v. Gage, Sup. Ct. Dist. Col. 1901; Buttfield v. Bidwell, No. 296 of this term.
The Treasury regtilations which were in effect at the time of the importation of these teas are matter of which this court may take judicial notice. Caha v. United States, 152 U. S. 211; Cosmos Co. v. Eagle Co., 190 U. S. 301, 309.
In construing an act not only is prior legislation in pari materia to be considered, but also it is important to examine the original form of the bill and the way in which the amendments thereto iwere inserted, for which purpose the journals of Congress may be considered, Blake v. National Banks, 23 Wall. 307; Legal Tender Cases, 12 Wall. 559; United States v. Burr, 159 U. S. 85; Chesapeake Co. v. Manning, 186 U. S. 238, 245, and, while it is not permitted to examine the debates of Congress, it is proper to examine the reports of Congressional committees, upon which reports the action of Congress was based. The Delaware, 161 U. S. 459, 472.
The former act in pari materia was the act of March 2, 1883, e. 64, 22 Stat. 451.
Every intendment is in support of the constitutionality of the act. Gettysburg Park Case, 160 U. S. 668, 680; Pine Grove v. Talcott, 19 Wall. 666, 673; Nicol v. Ames, 173 U. S. 509, 514, 515; Commonwealth v. Blackington, 24 Pick. 353, 355.
The power- to regulate commerce with foreign nations includes the power to prohibit the importation of these low, grade teas. United States v. Brigantine Williams, 2 Hall’s L. J. 255; 28 Fed. Cas. 614; 2 Story on Const. §§ 1093, 1290, 1292; 1 Kent, 431; 9 Stat. 237; Rev. Stat. § 2933; United States v. 43 Gallons of Whiskey, 93 U. S. 188, 194; Lottery Case, 188 U. S. 321, 354, 374; United States v. Realty Co., 163 U. S. 427; Murray’s Lessee v. Hoboken Land & Imp. Co., 18 How. 272. As to governmental limitations on foreign commerce, see licenses granted to individuals/showing powers of government. Leone Levi, History of British Commerce (2d ed.), pp. 30, 109, 235, 236; Adam Smith, Wealth of Nations, Book IV, c. I; New York Statutes of March 15, 1781, c. 29; 9 Hening’s Virginia Statutes, 1778, p. 532; 2 Stat. 500, 506.
The power to regulate commerce with foreign nations, being an enumerated power, is entirely unlimited so long as it does not violate any of the specific constitutional restrictions upon legislative authority. Lottery Case, 188 U. S. 321, 353, 356. An enumerated power is “distinct and independent, to be exercised in any case whatever.” McCulloch v. Maryland, 4 Wheat, at p. 421; Doyle v. Continental Insurance Co., 94 U. S. 535 541. It acknowledges no limitations other than those prescribed in the Constitution. Leisy v. Hardin, 135 U. S. 100, 108. It may be used for any lawful purpose. United States v. E. C. Knight Co., 156 U. S. 1; Hauenstein v. Lynham, 100 U. S. 483, and cases cited; Geofroy v. Riggs, 133 U. S. 258, 266, 267; Patapsco Guano Co. v. North Carolina, 171 U. S. 345.
The intent of the statute is, and for proper reason, to exclude teas of inferior quality though sufficiently pure and not unwholesome, so decided in Buttfield v. Bidwell, 96 Fed. Rep. 328. The word “quality” must not be regarded as surplusage and the construction of the statute left, to depend oh the words “fitness for consumption” construed as “wholesome.” As to significance of every word in a statute, see Bacon’s Abridgment, §2; Market Co. v. Hoffman, 101 U. S. 112, 115. The act is remedial and is to be construed as such. United States v. Stowell, 133 U. S. 1. The fact that the title is narrower than the scope of the act is immaterial.
The title may be used in construing a statute when the body of the statute is ambiguous; but the ambiguity must be found in the word to be construed or in its context, and not in the title. Patterson v. Bark Eudora, 190 U. S. 169, and cases cited; Hadden v. The Collector, 5 Wall. 107, 110.
For incongruities between titles and matter of-acts of Congress, sponges used to appear under the heading of “Chemicals, oils, or paints,” and cork under “Flax, hemp, and jute.” See 21 Atty. Gen. Opin. 67; Hollender v. Magone, 149 U. S. 586, 591; Seeberger v. Schlesinger, 152 U. S. 581, 583.
The statute being based upon an unlimited power of Congress, it is unnecessary to argue in its justification.
The delegation of details to the Secretary of the Treasury was proper, and indeed absolutely necessary. There is nothing new about the -establishment of physical standards. The Treasury Department at an early day had established standards of weight and measure. 5 Stat. 133, and for other instances, see 14 Stat. 560; Rev. Stat. § 2916; 13 Stat. 202 ; Rev. Stat. § 2914; Merritt v. Welsh, 104 U. S. 694, 702.
The line between the province of the legislature and that of the executive is difficult to determine, Wayman v. Southard, 10 Wheat. 1, 46; In re Oliver, 17 Wisconsin, 681, and the statute is to be given the benefit of any doubt. Carrying into affect in detail the legislative will is generally left to executive officers, although the details may be settled by the legislature if it desires to do so.
For other statutes of this nature-sustained, see Field v. Clark, 143 U. S. 649, 680; Dunlap v. United States, 173 U. S. 65.
The- lower- courts held that the- discretion lodged in the Secretary of War as to allowing bridges over navigable rivers: is an unconstitutional delegation of power, but the latest decisions- are to the- contrary. United States v. City of Moline, 82 Fed. Rep. 592; E. A. Chatfield Co. v. New Haven, 110 Fed. Rep. 788. The question has not been passed upon in this court. Montgomery v. Portland, 190 U. S. 89, 106, 107. The Secretary of War has a general right to make rules for the regulation of navigation on navigable rivers, which have the force of law; and both he and the Secretary of the Navy have large legislative powers over their respective departments of the public defence. United States v. Ormsbee, 74 Fed. Rep. 207, 209, and cases cited. As to power of Secretary of Interior, see Dastervignes v. United States, 122 Fed. Rep. 30. See also 30 Stat. 35 ; 1 Stat. 372 ;l Stat. 615; 2 Stat. 9; 2 Stat. 352, 411; 3 Stat. 224; 24 Stat. 475; Rev. Stat. §2494 ; 26 Stat. 414; Jones v. United States, 137 U. S. 202. As to Guano Acts, 11 Stat. 119; Porto Rico Act, 31 Stat. 78; Philippine Act, 31 Stat. 910; 1 Dillon Munic. Corp. § 308; Paul v. Gloucester County, 50 N. J. Law, 585, 600; In re Grimer, 16 Wisconsin, 423; Customs Regulation, 1892, p. 370; Isenhour v. State, 157 Indiana, 517, 522; 32 Stat. 1147, 1158; Tariff Act of 1897, par. 473; Alaska Act, 15 Stat. 240; Rev. Stat. § 1955; 17 Stat. 429; Rev. Stat. § 3529; United States v. Bailey, 9 Pet. 238; Caha v. United States, 152 U. S. 211, 219; Hanover Bank v. Moyses, 186 U. S. 181, 189; Hewitt v. Charier, 16 Pick. 353; State v. Heinemann, 80 Wisconsin, 253; Dent v. West Virginia, 129 U. S. 114, 122; Reetz v. Michigan, 188 D. S. 505; Overshiner v. State, 156 Indiana, 187, 193; Scholle v. State, 90 Maryland, 729; Martin v. Witherspoon, 125 Massachusetts, 175; Brodbine v. Revere, 182 Massachusetts, 598; In re Flaherty, 105 California, 558; Wilson v. Eureka City, 173 U.S. 32, 36, 37.
As to delegation of pardoning power, 6 Stat. 3; The Laura, 114 U. S. 411. As to patents, United States v. Duell, 172 U. S. 576.
Due process of law was not denied to the plaintiff. Origel v. Hedden, 155 U. S. 228, 236; Auffmordt v. Hedden, 137 U. S. 310, 323. The finding was final and the importer's only remedy was by appeal to the dispensing power of the “Secretary of the Treasury. Passavant v. United States, 148 U. S. 214; Origet v. Hedden, supra, at p. 236. This “additional duty” was a penalty in the strictest sense of the word. 4 Op. 182; 20 Op. 660.
A person who imports nonimportable goods may properly be put to the expense of taking them away again, The ease is similar to. that of the return of an alien immigrant at the expense of the transportation company that has brought him into our ports. Acts of Sept. 13, 1888, c. 1015; March 3, 1891, c. 551. Under these statutes the inspectors are not required to take any testimony; their decisiones absolutely final. Nishimura Ekiu v. United States, 142 U. S. 651, 663; Lem Moon Sing v. United States, 158 U. S. 538; Chin Bak Kan v. United States, 186 U. S. 192.
Plaintiff was not damnified by the act of 1897 or by the standard of 1901. Either his loss is due to his own failure to notify his buyers in China; or it is due to their default, for which he is responsible as against others and they are responsible to him; or it is due to a plan of his own tó import teas below' the standard, procure a judgment establishing the unconstitutionality of the act, and thus undersell his competitors.
