ment of the law and does not justify the extra-official substitution of the word "examiner" for the word "appraiser" in Paragraph I of Section III, although the examiner had been claimed to be the "eyes, hand, and voice of the appraiser."

Many years ago Mr. Justice Story said:

Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare, ita lex scripta est, to follow and to obey. Nor if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide in practice than mere policy and convenience.

For the above reasons, as the Treasury decision declaring the standards applicable to these importations is signed by the Assistant Secretary and proclaimed as his own finding and not by the Secretary of the Treasury, judgment should issue sustaining the protest.

The whole burden of the defendant's claim in this case is to imply power in someone not mentioned in the law. Power is given by Congress to one and by a pure implication it is passed on to another not named by Congress. Doubtless Congress could not effectively do this thing itself and must by necessity delegate the duty to fix these dye standards to some executive officer. But the necessity ends there. There is no occasion to pile another fancied necessity on top of that, apparently upon the weak plea that the important and responsible person whom Congress has deliberately selected to perform this delicate task has not the time to do it.

Such a theory as that on which to predicate implied powers in subordinate officials tends, in my opinion, to destroy responsible government and to weaken individual responsibility among Government officials, who can thus pass on to subordinates the performance of their most delicate and responsible duties. Applied to ordinary departmental routine and to purely ministerial duties such implied redelegation to subordinates would have much to justify it on grounds of departmental efficiency. But when applied to a duty of this kind which affects rights, and particularly the legal right of the importer to be taxed in exactly the method that Congress has decreed, and in no other way, it has no legal principle to sanction it.

T. D. 40192, published in 45 Treas. Dec. 588, reads:

Standards of strength of dyes, colors, etc.

TREASURY DEPARTMENT, May 17, 1924.

To Collectors of Customs and Others Concerned:

Standards of strength of dyes, colors, etc., set forth in the appended list are hereby adopted under the provisions of paragraph 28 of the tariff act of 1922.

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MCKENZIE Moss, Assistant Secretary.

The words "hereby adopted" mean in plain English that they are adopted by the man who signs the paper, McKenzie Moss.

As far as any presumption could arise from the promulgation of that paper it could go no further than to presume from it that the Secretary had authorized McKenzie Moss to adopt the standards for him under the provisions of paragraph 28 which Moss says are hereby adopted. That paper at most implies that the Secretary of the Treasury had delegated to McKenzie Moss his own duties prescribed by paragraph 28 and leaves open the question which, as I understand it, is the sole question in this case, as to whether the Secretary of the Treasury had a right to delegate to his assistant secretary the duty of adopting said standards.

In the countervailing duty case of Franklin Sugar Refining Co. v. United States (178 Fed. 745), cited in the majority opinion, the statute provided for the levy of additional duty "equal to the net amount of such bounty or grant" as stated in the foreign law. The Secretary of the Treasury in directing its levy exercised no discretion, as he does here, in finding a commercial strength as the basis of a standard for this dye. The Secretary looks to see whether or not the foreign law gives a bounty or not. If it does he does not determine the amount of it. He merely determines whether or not it exists. The foreign law fixes the amount of it. There is no discretion confided to him to determine the amount of it. If any other intelligent person looked at the foreign law he would be equally bound to see it and to read the amount the foreign law fixes for it. Therefore when in 178 Federal the Secretary was presumed to have delegated the finding of it to his assistant he did not delegate something, as he must here, which the Congress has confided solely to his own discretion. The two actions, one discretionary and the other not, are so different that the delegation of one involving no discretion, or its presumption from the assistant's act, is no authority for the delegation of the other plainly involving personal discretion, and its presumption, from the act of the assistant to whom Congress did not confide such a discretion. United States v. Peralta et al. (19 How. 343), cited by the Government, related to title to land in California. It was urged that the officers whose grants were proved had no authority to grant land. The court held that the Spanish governors presumably had power to make these land grants. That was all that was decided in that case. Wolsey v. Chapman (101 U. S. 755) involved a complicated question of title to land, and involved the construction of complicated statutes as to whether they gave to the State of Iowa title to certain lands and power to dispose of them to the defendant, or whether he was in justice bound to take notice of a reservation made by a Cabinet officer as if it had been made by the President himself. Such question of notice as affecting the bona fides of title to land through such action is too remote to affect as a precedent the construction of the statute before us, as to whether a delegation of the

discretionary power affecting taxation here involved can be delegated to an assistant secretary by the Secretary of the Treasury.

In Chadwick v. United States (3 Fed. 750, 756) liability on a collector's bond was sought to be avoided for money shown by accounts duly settled which was certified by an assistant secretary which could have been certified by the Secretary, a routine matter far removed from the question of redelegation here at issue.

In United States v. Adams (24 Fed. 348) it was held a letter written by an assistant secretary to a collector of customs concerning the deposit of money in the collector's custody as affecting liability on said collector's official bond will be presumed to have been written by the Secretary of the Treasury until the contrary appears. This has no bearing on the issue before us.

In the John Shillito Co. v. McClung (51 Fed. 868) a decision was made that the appeal was imperfect by the Secretary of the Treasury himself on November 2, 1881, and again the Secretary of the Treasury himself refused to reconsider his action in that regard. Suit was brought more than 90 days after this action, and therefore, as far as that decision was concerned, was too late.

Later, on the 10th day of December, 1881, the Assistant Secretary of the Treasury undertook to decide the appeal on the merits. The suit was brought more than 90 days after this decision on the merits by the assistant secretary.

While the facts are somewhat confusingly stated, careful analysis of the opinion clearly shows the above statements to be correct. On page 873 the court says:

Counsel for plaintiff in error has presented a very elaborate and highly technical argument to establish that, as the Secretary of the Treasury was exercising a judicial or quasi judicial function in respect to the appeal, his refusal to entertain the same when presented was such action or decision as exhausted or terminated his jurisdiction. If that view of the question is correct, it will be difficult to escape the conclusion that such refusal, based upon the ground that the protest had not been made within the time required by law, was such a decision against the importers as entitled them to bring suit within 90 days thereafter.

Again, on page 874, the court says:

In what is there said and under the language of the statute the Secretary's decision "on the appeal" is not restricted to a decision on the merits of the claim thereby presented, but includes his decision on the sufficiency of the appeal itself. If he should decide the appeal to be insufficient for noncompliance with the requirements of the statute, and refuse to consider the same, the importer would have to commence suit within 90 days thereafter. The plaintiff in error is therefore in this dilemma: If the action of the Secretary on November 2, 1881, in declining to entertain the appeal for the reason that the protest was not made in time, was such a decision on the appeal as exhausted his authority over the matter, then suit should have been brought within 90 days from that time.

As the court held that the refusal to consider the appeal was the "decision" contemplated, which decision was by the Secretary of

the Treasury himself (not by the assistant) the decision of the court below should have been affirmed on that ground alone without more. Consequently every word said in the opinion as to the power to delegate to the assistant secretary and any presumption arising from the form of the action taken was the purest kind of pure dicta, and not binding as a precedent on the question of the delegation. Moreover, at the conclusion of the opinion the Circuit Court of Appeals further held that the plaintiff in error had no power to maintain the suit because it involved a claim against the Government which had been assigned. This further shows that the discussion about delegation was entirely unnecessary to the decision of the case.

The writer would like to know what the limits are to the legal presumption declared in the majority opinion, which implies that one official did a thing because another official announces that he did it. Suppose a customs examiner, or a clerk in the Treasury Department, issued a formal announcement that the following standards had been "hereby adopted" under paragraph 28, and that the paper was published over his signature in the Treasury circular, would a legal presumption arise nevertheless that the Secretary of the Treasury had done it? Where does the presumption stop? Again if this duty can be delegated by the Secretary of the Treasury to the assistant secretary, why can it not be delegated by the Secretary of the Treasury to any clerk in the Treasury Department? Where and by what limits and under what reasoning does the delegation stop? Every time Congress imposes a delicate discretionary duty upon a prominent official whose personal responsibility, it wishes to trust, and in whose discretion it wishes to confide, action under which affects the amount of a tax paid, must Congress also add express language stating that the power hereby given and the personal trust hereby imposed can not be delegated to anyone else, in order to prevent its redelegation? The reasoning of the majority opinion would seem to imply that consequence as a necessary legal conclusion. Again the doctrine announced goes logically to the extent of holding that any duty however responsible, personal, or discretionary imposed upon the Secretary of the Treasury may be performed by anyone in the Treasury Department, provided the Secretary expressly or impliedly consents. That may be true about routine departmental matters which affect no citizen's rights. Congress in legislating concerning them may so assume. But Congress can hardly be presumed to so assume concerning a delicate discretionary matter which affects the amount of a tariff tax an importer must pay. It will not do to confuse the ascertainment of the amount of a tax payment with ordinary departmental matters which do not directly affect any particular person. After all this is a government of laws and not of men.

(T. D. 42677)

Deformed steel bars-Structural shapes

HENRY L. EXSTEIN Co. (INC.) v. UNITED STATES

Deformed steel bars which, in their imported condition, are fit only for use as structural shapes in reinforcing concrete work in structures, especially buildings, are properly dutiable at the rate of one-fifth of 1 cent per pound under paragraph 312 of the act of 1922 as structural shapes, rather than at the rate of three-tenths of 1 cent per pound under paragraph 304 of said act as steel bars.

United States Customs Court, Second Division

Protest 197795-G against the decision of the collector of customs at the port of Baltimore [Reversed.]

(Decided March 27, 1928)

Colladay, Clifford & Pettus (Henry B. Morrow and Charles C. Cooper, jr., of counsel) for the plaintiff.

Charles D. Lawrence, Assistant Attorney General (Kenneth G. Osborn, special attorney), for the United States.

Before FISCHER and WAITE, Justices

FISCHER, Chief Justice: Certain so-called deformed steel bars, used exclusively in the reinforcement of concrete construction work, were classified by the collector at the port of Baltimore as dutiable at the rate of three-tenths of 1 cent per pound under the provision in paragraph 304 of the tariff act of 1922 for "steel bars

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valued above 1 cent and not above 12 cents per pound," and are claimed by plaintiff to be properly dutiable at but one-fifth of 1 cent per pound under the provision in paragraph 312 of said act for "all other structural shapes of * * steel."

So far as pertinent the enumerated paragraphs read as follows: PAR. 304. Steel ingots, cogged ingots, blooms and slabs, by whatever process made; die blocks or blanks; billets and bars, whether solid or hollow; shafting; pressed, sheared, or stamped shapes, not advanced in value or condition by any process or operation subsequent to the process of stamping; hammer molds or swaged steel; gun-barrel molds not in bars; alloys not specially provided for used as substitutes for steel in the manufacture of tools; all descriptions and shapes of dry sand, loam, or iron molded steel castings; sheets and plates and steel not specially provided for; all of the foregoing valued above 1 cent and

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not above 11⁄2 cents per pound, three-tenths of 1 cent per pound; * * PAR. 312. Beams, girders, joists, angles, channels, car-truck channels, tees, columns and posts, or parts or sections of columns and posts, deck and bulb beams, and building forms, together with all other structural shapes of iron or steel, not assembled, manufactured or advanced beyond hammering, rolling, or casting, one-fifth of 1 cent per pound; any of the foregoing machined, drilled, punched, assembled, fitted, fabricated for use, or otherwise advanced beyond hammering, rolling or casting, 20 per centum ad valorem; sashes, frames, and building forms, of iron or steel, 25 per centum ad valorem.