acquired a vested right and property interest. Then, assuming this contractual relation, and the existence of a vested right, it is claimed that it is expressly protected and exempted from the operation of the repeal by the saving clause in paragraph 72, of the new law, as follows:

"Paragraph 72. All acts and parts of acts inconsistent with the provisions of this act are hereby repealed; but the repeal of existing laws or modifications thereof embraced in this act shall not affect any act done, or any right accruing or accrued, or any suit or proceeding had or commenced in any civil cause before the said repeal or modifications; but all rights and liabilities under said laws shall continue and may be enforced in the same manner as if said repeal or modifications had not been made."

This clause is substantially like the repealing clauses of former tariff or revenue acts, and was not intended to embrace or refer to the provisions of the act relating to the bounty. "These different parts of the act, in respect to their operation, have no legal connection whatever with each other. They are entirely separable in their nature, and, in law, are wholly independent of each other. One relates to the imposition of duties upon imported articles; the other to the appropriation of money from the Treasury for bounties on articles produced in this country." Field v. Clark, 143 U. S. 649.

For the foregoing reasons it was proper, if not necessary, to enact separate repealing clauses adapted to the nature of these two separate and distinct objects; besides the revenue part of the law was not abrogated, but substituted merely by another for the same general purpose.

In view of the special repealing clause relating to the bounty provisions of the act, paragraph 72 must be referred to the provisions of the tariff act alone. The saving of rights and liabilities thereunder was rendered proper and necessary by the enormous volume of business done under the act and the difficulties and litigation attending upon

5 Ct. App.-10

its construction. An unconditional repeal of its provisions, thereby terminating rights and destroying liabilities, accrued thereunder, would have been attended with great confusion and probable loss of revenue to the Government, as well as injustice to individuals.

Conceding the constitutionality of the bounty law, for the sake of argument, it is clear that the claim of petitioner by virtue of its licenses, even if it might be considered property as between third persons claiming the expectancy, constitutes but a step in the process of securing a mere bounty, or gratuity, offered by one Congress which another had the undoubted right to recall. The authority for this view is overwhelming, and it is too plain to admit of question. Salt Co. v. East Saginaw, 13 Wall. 373; Welch v. Cook, 97 U. S. 541; Newton v. Commrs., 100 U. S. 548; United States v. Teller, 107 U. S. 64; Pennie v. Reis, 132 U. S. 464; Crenshaw v. United States, 134 U. S. 99.

The claim under such an act is but a mere inchoate interest or right, at the best, and no more a contractual or vested right than has uniformly been held with respect to the right of an informer, or an officer, in penalties and forfeitures under revenue or penal laws. United States v. Morris, 10 Wheat. 246: Norris v. Crocker, 13 How. 429; Dorsheimer v. United States, 7 Wall. 166.

Our conclusion, therefore, is that the repeal of the bounty provisions of the act of October 1, 1890, was immediate and complete, without excepting or protecting any such right as relator claims thereunder, and consequently there remains no duty with respect thereto that the respondents might or could lawfully perform.

3. The constitutionality of the bounty law has been raised by the respondents and fully argued. Whilst its decision might be evaded under our conclusion with respect to the repeal of the law, we think the question one that should be met and determined.

The situation is very different from that presented to the

Supreme Court in Field v. Clark. There the question was not distinctly involved in nor necessarily incidental to the matter in controversy. Congress had enacted the law, the Executive had approved it, and the executive officers recognized its validity and were engaged in its execution. The great pecuniary interests to be affected were not before the court and might have been injured without a hearing. Here the question is raised by the officers of the Government and its decision invited. The party at interest is the actor in the litigation, and began its suit with the knowledge that, if correct in its other contention, this question lay directly in the path of its prayer for relief.

The power of Congress to pay bounties to manufacturers or producers in order to encourage the manufacture or production of any article has never been passed upon by the courts. By the very nature of Federal taxation and appropriations of public money, questions respecting their validity are very difficult to be raised. There is no simple mode of challenge, as is the case in the States where the taxpayer, having a direct interest, can invoke relief through injunction, if need be.

We have already referred to the case of Field v. Clark, and the manner in which the question there arose and the reasons for which it was not decided. Calder v. Henderson,

2 U. S. App. 627, has been cited as upholding the power, but the question was not involved in the case. The question there was, simply, whether the inchoate right to the bounty, of a licensee, recognized by the law and the executive officers of the Government, passed to his assignee for the benefit of his creditors, and it was held that it did. As between the parties, it was held to be an expectancy which could be assigned as property, under the authority of Williams v. Heard, 140 U. S. 529; Comegys v. Vasse, 1 Pet. 193, and other cases.

The principle, however, which underlies the question, and upon which its solution depends, has, in our opinion, been

time and again asserted and applied in the court of last resort in such cases, beginning with Calder v. Bull, 3 Dall. 386. In that case, Mr. Justice Chase announced a sound doctrine as regards the construction of legislative powers in this country in vigorous language, from which we quote: "I cannot subscribe to the omnipotence of a State legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the constitution or fundamental law of the State. The people of the United States erected their constitutions or forms of government to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature and ends of legislative power will limit the exercise of it.

There are acts which the Federal or State legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty or private property, for the protection whereof the government was established. An act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact and on republican principles must be determined by the nature of the power on which it is founded."

The learned justice then proceeds to enumerate certain laws that might be enacted, and among them “a law that takes property from A and gives it to B," and says again: "The genius, the nature, and the spirit of our State governments amounts to a prohibition of such acts of legislation;

and the general principles of law and reason forbid them. To maintain that our Federal or State legislatures possess such powers, if they had not been expressly restrained, would, in my opinion, be a political heresy altegether inadmissible in our free republican governments."

This impressive declaration of the limitations upon legislative power, pronounced in 1798, has lost none of its force or vitality through lapse of time, but has been substantially affirmed and reaffirmed in cases before the same high tribunal and others. Loan Association v. Topeka, 20 Wall. 655. The point decided in that case was that an act of the legislature of Kansas authorizing and empowering cities and towns to encourage the establishment of manufactories and such other enterprises as may tend to develop and improve such cities, either by direct appropriation from the general fund or by the issuance of bonds, was beyond the power of the legislature, and therefore void.

The truly great opinion of Mr. Justice Miller therein affirms the doctrine of Justice Chase in Calder v. Bull, and advances it further in application to the great power of taxation. He says: "It must be conceded that there are rights in every free government beyond the control of the State. A government which recognized no such rights which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depositary of power, is, after all, but a despotism of the many-of the majority, if you choose to call it so; but it is nevertheless a despotism. The theory of our governments, State and National, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by