Evening star. [volume] (Washington, D.C.) 1854-1972, 1891-10-09

SseAHD ~ cNcAAAN ihAs
osIrIoN.
Briefs for the importers have been fled in the
Supreme Court in two Of the pending cases in
volving the constitutionality of the Mckinley
tariff act, those Of Stembach a Co. from New
York and Marshall Field a Co. of Chicago.
The brief OF Stembach 4 Co. is signed by
Messrs Edwin b. Smith end stephen q. Clarke
and that Of Marshall Field & Co. by n W.
Bliss. Both briefs are chiefly based upon the
claim that the Mckinley tariff act is void be-
cause of the omission by the enrolling clerk Of
the tobacco rebate section. which Was stricken
ont OF the original bill by the Senate and after
ward restored in conference. Many similar
cases decided by state courts are cited, among
them one by the supreme court of Michigan
decided May 8. 1880. The history of the act Of
the legislature of Michigan which the court de-
cided to be null and void is as follows: The bill
was introduced originally and passed IN the
house. The senate returned il to the
house with nine amendments, in which the
house refused to concur, and a conference was
ordered. After two committees of conference
had been appointed AN agreement was reached
by both houses by which some of the senate
amendments were concurred IN and others were
SO modihed as to meet the approval OF the
house. But the enrolled bill. as presented TO
the governor and signed by him. contained all
the senate amendments originally proposed
aud omitted the amendments and notifications
proposed by the second conference committee
and adopted by both houses The supreme
court OF Michigan. after reciting the differences
between the act found upon the statute book
and the bill as it had passed. SAYS: 1t pre-
cludes an idea Of attempting TO save any por-
tlon of the act 1t was never passed by
the legislature and rs null and void"
The court adds: 1t is to be deeply re-
gretted that so important a law as
this, covering a subject of great public inter
est, should, because OF the gross carelessnes or
worse, of some one, be wiped bodily from the
statute books. But the courts not respon-
sible for this, nor can tney usurp the functions
OF legislation and by shutting their eyes to the
record of Legislative doings declare law valid
that never passed tine legislature, however well
authenticated it may be by the certificate of
officials"
APPRAISER VS.. JUDGE ssMERvuLE-
The opinion of the board of general apprais-
ers, sustaining the validity of the Mckinley
tariff act against the protest of the importers
that the act was void because of the omission
OF the tobacco rebate section, written by
Appraiser Someryille. In reply TO this both
briefs cite decision made by the same Judge
Somervllle while a justice OF the supreme
court of Alabama. In this decision Judge
Someryille said: Il take it Furthermore as a
sound rule, also settled by our decisions. that
If the bill which is passed by the general as
sembly varies materially in substance and legal
effect from that which is approved by the gov
ernor, especially when this subject OF variance
involves u matter ofamendment without the in
corporation OF which in the bill one Of the
houses refused to concur with the other on its
final passage. then there exists such a want of
legal and actual identity between the bill passed
and the one approved as that neither of them
acquires the force of a valid and constitutional
enactment
The act declared invalid, null and void by
this decision act tn levy tax far ha
use OF the state of Alabama and the counties
thereof, approved February %, 1883. The Jour-
nal OF the house showed that the enrolling
clerk had omitted to incorporate in the enrolled
bill, no doubt inadvertently, material amend
ment which was a component part of the COM
plete bill as 1t passed the two Legislative bodies
Judge Someryille said: That this omission
vitiates the entire bill think there can be no
room Tor doubt, provided t1e amendment itself
which is omitted is not void for repugnancy to
the constitution, on the grounds which shall
hereafter discuss" After discussing these
grounds and deciding that the amendment
omitted was not unconstitutional Judge Somer-
vile said: Its omission from the law was
therefore, material, and under the principles
first decided the entire act was vitiated because
1t never passed through the mandatory forms
prescribed by the constitution for the enact
ment of a valid constitutional law
In discussing another phase Of this case
Judge Somerviile said "a revenue bill. ordi-
visions OF which sustain a mutual dependence
and mutual relation The omission of mate
rial part disturbs the equalization of the sys-
tenn and varies more or less the substance and
legal effect OF the entire bill"
DECISION By JUDGE COOLEY.
Judge Cooley of the interstate Commerce
commission, while upon the supreme bench of
Michigan, declared: "A law must have the con-
currence of the three branches of the legislative
department. and if it differ in an essential par
ticular when presented to the governor for his
signature from the bill as passed by the two
houses, there is difficulty in saying that il has
been concurred in by all"
In support of the claim that the sugar boun-
ties clause of the Mckinley act is unconstitu-
tional, both briefs cite the decision of the late
Justice Miller of the United States Supreme
Court in which he declared: 40 lay with
one hand the power of the government upon
the property Of the citizen and with the other
to bestow it upon favored individuals to aid
private enterprises and build up private for
tunes is none the less robbery because il is
done under the forms of law and is called taxa
ton. This Is not legislation. 1t is decree
under legislative forms; nor is it taxation"
The power given to the President in the third
section OF the Mckinley act to reimpose duties
upon tea. coffee, sugar and hides at his discre-
ton is declared in their briefs to be SO OBJ
viously unconstitutional as almost to preclude
argument Nor can 1t be necessary" says the
brief of Smith and Clarke, ito cite authorities
or decisions upon this subject for this assign
ment of the taxing power to the President is q
novelty in our legislation"