386 Opinion of the Court. exceptions must be respected, we must give the recitals of the bill a reasonable construction. Kleinschmidt v. McAndrews, 117 U. S. 282, 286; Waldron v. Waldron, 156 U. S. 361. While it may be said that the form in which this bill of exceptions is sent up is in its parts slightly inconsistent in itself and apparently self-contradictory, it is clear that the bill as signed by the trial judge, and read in the light of the order which is referred to and identified in the bill, brought and was intended to bring to the appellate court all of the evidence heard in the court below, and all the exhibits, even those said in it to be omitted therefrom which were ex industria sent by order of the court to the court above for that court's examination. We think that by the references in the bill the exhibits separately sent by order of the trial court to the Circuit Court of Appeals are sufficiently identified as part of the bill. They were omitted from the bill in the sense only that they were to be sent separately from the rest of the bill to the reviewing court, perhaps with a view, rightly or wrongly, to avoiding the necessity of printing them. But the certificate of the judge certainly included them in the bill when, after expressly referring to them, he said "This was all the evidence in the case." To be sure, it is well settled that exhibits found in the record, or even annexed to a bill of exceptions, when not attached to it by way of identifying them as intended to be part of it, can not be treated as such. Bank v. Kennedy, 17 Wall, 19, 29; Reed v. Gardner, 17 Wall. 409, 411; Jones v. Buckell, 104 U. S. 554; Hanna v. Maas, 122 U. S. 24. But in Leftwitch v. Lecanu, 4 Wall. 187, on page 189, Mr. Justice Miller, while exemplifying this principle, said in rejecting a bill of exceptions: "If a paper which is to constitute a part of a bill of exceptions, is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, number, or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions." And again, in Jones v. Buckell, supra, at 556, Chief Justice Waite, in making a similar ruling, said: "Of course, evidence may be included in a bill of exceptions by appropriate reference to other parts of the record, and if that had been done here it might have been enough." As we have said, we think the identifying references, in the bill, to the exhibits are sufficient. The result is that the Circuit Court of Appeals should have considered the issues before it on the bill of exceptions as containing all the evidence below, and that the dismissal for lack of it was erroneous. The judgment is reversed and the cause is remanded to the Circuit Court of Appeals for further proceedings. Reversed. J. W. HAMPTON, JR., & COMPANY v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS APPEALS. No. 242. Argued March 1, 1928.-Decided April 9, 1928. 1. Section 315 (a), Title III, of the Tariff Act of Sept. 21, 1922, empowers and directs the President to increase or decrease duties imposed by the Act, so as to equalize the differences which, upon investigation, he finds and ascertains between the costs of producing at home and in competing foreign countries the kinds of articles to which such duties apply. The Act lays down certain criteria to be taken into consideration in ascertaining the differences, fixes certain limits of change, and makes an investigation by the Tariff Commission, in aid of the President, a necessary preliminary to any proclamation changing the duties. 394 Argument for Petitioner. Held that the delegation of power is not unconstitutional. P. 405. 2. Congress has power to frame the customs duties with a view to protecting and encouraging home industries. P. 411. 14 Ct. Cust. App. 350, affirmed. CERTIORARI, 274 U. S. 735, to a judgment of the Court of Customs Appeals, which affirmed a judgment of the United States Customs Court, 49 Treas. Dec. 593, sustaining a rate of duty as increased by proclamation of the President. Mr. Walter E. Hampton for petitioner. The difference in cost of production at home and abroad cannot be found as a fact without using discretion and judgment, choice between different results, at every stage, thus expressing the exercise of the legislative will. The fact that the cost of joint products and by-products cannot be separated except arbitrarily, that alone, and by itself, makes § 315 unconstitutional. There is no magic about the word "finding." The act of making the "finding" itself has no creative power. The complete breakdown of any argument from necessity as sanction for § 315, because Congress has itself been fixing tariff rates without difficulty, since the beginning, completely distinguishes the cases cited by the Government where the question of delegating legislative power was actually raised and discussed by this Court. Buttfield v. Stranahan, 192 U. S. 470; Waite v. Macy, 246 U. S. 606, T. D. 37647; United States v. Grimaud, 220 U. S. 506; Union Bridge Co. v. United States, 204 U. S. 364; Monongahela Bridge Co. v. United States, 216 U. S. 177; Hannibal Bridge Co. v. United States, 221 U. S. 194; United States v. Chemical Foundation, 272 U. S. 1; Field v. Clark, 143 U. S. 649; In re Brig Aurora, 7 Cranch 382. The expression in sub-section C, "the President in so far as he finds it practicable shall take into consideration any other advantages or disadvantages in com Argument for Petitioner. 276 U.S. petition," in itself, renders § 315 unconstitutional. On account of its presence alone, we submit, this Court should declare the section unconstitutional without even considering the question of the unconstitutionality of the "difference in cost of production" formula. The court below makes the fatal admission that the difference in cost of production at home and abroad cannot be precisely established, and further that a discretion. is bestowed on the President as to how he shall find such cost differences. The Countervailing Duty cases, Downs v. United States, 187 U. S. 496, and Nicholas v. United States, 249 U. S. 34, do not support the legality of § 315. In countervailing duty, Congress itself provides that whenever any country gives a bounty, rebate or grant upon the exportation of merchandise dutiable under our tariff, an additional duty "equal to the net amount of such bounty or grant" shall be levied on such merchandise upon importation here. The appraisement cases have no place in this discussion. The distinction between executing or applying an existing ad valorem to a particular importation on the day of exportation, and making a new rate of taxation to apply in the future by changing an existing tariff rate, should be self-evident. The fact that some kind of cost calculations occasionally crept into finding ad valorem market value, would not make the two processes similar in any respect. One still applies an existing rate and the other fixes a new tax rate for the future. A non justiciable subject-matter, such as this, cannot be made into a judicial process, nor can the ultimate duty be laid upon the courts, by review of this machinery, to take part in fixing the tax rate. Consequently the Interstate Commerce Commission cases which deal with a justiciable subject-matter are not in point and are not authority for the legality of a flexible tariff. 394 Argument for Petitioner. The currency cases do not support the Government's position. Cramer v. Arthur, 102 U. S. 612; Arthur v. Richards, 90 U. S. 259; Hadden v. Merritt, 115 U. S. 25; United States v. Klingenberg, 153 U. S. 93. Congress has a right to place any value for customs purposes it pleases on foreign money. It authorized the Secretary of the Treasury to proclaim such value for a year and from quarter to quarter, thus coming nearer the true value, and being a fairer way of doing it. It was plain that Congress could not pass such a currency valuation statute every quarter. Many months Congress is not even in session. To thus relax the arbitrary rule and make it less arbitrary was not delegating legislative power or taxing power. The Chemical Foundation case, 272 U. S. 1, is not in point. A levy frankly stated to be for the purpose of protection, irrespective of revenue, is illegal. Bailey v. Drexel Furniture Co., 259 U. S. 20; Hill v. Wallace, 259 U. S. 44; Loan Association v. Topeka, 20 Wall. 655. Had there been no tax clause in the Constitution, could § 315 have been enacted under the power to regulate commerce? But even if Congress can tax under the commerce clause alone, it cannot make a levy for a private purpose. A tax to equalize foreign and domestic cost differences is not in any rational sense of the word a regulation of commerce. Commerce cannot be regulated for a frankly declared private purpose. The President cannot be delegated the authority to levy taxes for the regulation of commerce any more than he can be delegated authority to levy taxes for the raising of revenue. On the other hand, assuming, for the purpose of the argument only, that the section is a legal delegation, the commerce clause gives it no support or sanction as being on its face for the private purpose of "protection" to |