Newfoundland, the Bahama Islands, the Bermuda Islands, the West India Islands, Mexico and Central America down to and including Aspinwall and Panama," is extended to "vessels entered from any foreign port."

(4) The new and important proviso is added under which the suspension of tonnage duties is forbidden in case of vessels coming from "any foreign country in whose ports the fees or dues of any kind or nature imposed on vessels of the United States, or the import or export duties on their cargoes, are in excess of the fees, dues, or duties imposed on the vessels of the country in which such port is situated, or on the cargoes of such vessels."

The quoted section of the act of 1909 as to which your inquiry arises expressly repeals the just quoted section of the act of 1886, but repeats the provisions of the latter section down to its provisos (which concern the President's power of suspending the tonnage duties) with no substantial change except the reduction of the tonnage duties from "three cents per ton, not to exceed in the aggregate fifteen cents per ton in any one year," to "two cents per ton, not to exceed in the aggregate ten cents per ton in any one year," in the case of vessels entered "from any foreign port or place in North America, Central America, the West India Islands, the Bahama Islands, the Bermuda Islands, or the coast of South America bordering on the Caribbean Sea, or Newfoundland." This list of favored countries remains the same in the act of 1909 as in the act of 1886, except in the omission of the Sandwich Islands from the list in the act of 1909 because of their annexation to the United States after 1886. It is also to be noticed that the act of 1909 expressly repeals section 12 of the act of 1886 (24 Stat. 82), which reads:

"That the President be, and hereby is, directed to cause the Governments of foreign countries which, at any of their ports, impose on American vessels a tonnage-tax or lighthouse dues, or other equivalent tax or taxes, or any other fees, charges, or dues, to be informed of the provisions of the preceding section, and invited to cooperate with the Government of the United States in abolishing all light

house dues, tonnage-taxes, or other equivalent tax or taxes on, and also all other fees for official services to, the vessels of the respective nations employed in the trade between the ports of such foreign country and the ports of the United States."

Under the provisos of the quoted enactments of 1884 and 1886 the President issued a number of proclamations, of which the last was dated July 19, 1898, declaring the suspension of the collection of any of the duties imposed by said acts upon vessels entering from the ports of designated countries, among which was the Province of Ontario.

Considering the matter in the light of all the foregoing enactments, I deem it entirely clear that the President has no power to suspend collection of the tonnage duties imposed by section 36 of the tariff act of 1909, in favor of vessels entering from the Province of Ontario or from any foreign country whatsoever. As stated at the outset, such power can not be claimed to exist, in view of the express repeal of all section 11 of the act of 1886, unless the first proviso of section 14 of the act of 1884, which required suspension of the collection of tonnage duties in a certain case as to vessels from specially enumerated countries, has been revived as law through the repeal of the section of the act of 1886 which extended and modified that power of suspension. The power of suspending tonnage duties given to the President by section 4219 of the Revised Statutes did not reach to the duty of 30 cents per ton, in lieu of which the tonnage duties fixed by the acts of 1884 and 1886 were imposed, and can not extend to the tonnage duties imposed by the act of 1909, even though the provisions of the said section 4219 be still in force, except as to the general tonnage duty of 30 cents per ton. Whether any provisions of section 4219, Revised Statutes, are now in force need not be considered at this time.

The claim that the suspending power given to the President by the act of 1884 has been revived must rest upon the idea that the act of 1909, by repealing the section of 1886, which displaced the section of 1884, revived the last section. If the section of 1886 may properly be deemed to have re

pealed the section of 1884, still the contention is met by the fact that the rule of the common law, whereunder the repeal of a repealing statute is held to revive the original act first repealed, has been altered as to the construction of Congressional enactments by section 12 of the Revised Statutes, which provides that: "Whenever an act is repealed, which repealed a former act, such former act shall not thereby be revived, unless it shall be expressly so provided." If, therefore, the section of 1886 could be said to have repealed the section of 1884, the result must be that the power of suspending tonnage duties under the act of 1884 no longer exists; and many courts would regard the section of 1886, which said that the section of 1884 should "be amended so as to read as follows," as a repealing act, and so dispose of the question in hand. Thus in Goodno v. City of Oshkosh, 31 Wis. 127, which related to a series of enactments analogous with that under discussion, Chief Justice Dixon says:

"The rule of construction enacted by statute in this State, that no act or part of an act repealed by a subsequent act of the legislature shall be deemed to be revived by the repeal of such repealing act, is well understood. (R. S., ch. 5, sec. 25, subd. 3; 1 Tay. Stats. 183, sec. 25, subd. 3.)

"In State v. Ingersoll, 17 Wis. 631, this court decided that where a statue provides that a certain section of a former statute shall be amended so as to read as follows,' etc., any provision of such section not found in the new statute is repealed. It follows very clearly from that decision, that, whatever provision of the former statute was in force after the amendment of 1868, it was so in force because of being found in the amendatory act, and that if all or substantially all of the former section continued to be the law, it was merely by reason of its having been copied into and reenacted with the amendment. The original section, as an independent and distinct statutory enactment, ceased to have any existence the very moment the amendatory act was passed and went into effect, and whatever provisions of it remained as law were such solely by virtue of being again enacted in the amendment. The

original section, as a separate statute, was as effectually repealed and obliterated from the statute book, as if the repeal had been made by direct and express words, and none of its provisions had been reenacted. Such being the operation of the act of 1868, the conclusion as to the operation of that of 1869 is not difficult. It repealed the whole of the act of 1868, as well that part which reenacted the provisions of the original section as the part which was added to those provisions. How such repeal çan be severed, and said to apply only to that portion of the act of 1868 which was new, and not to affect that portion which was old or borrowed from the provisions of the previous statute, is certainly not easy to be perceived. If we are to look for the intention of the legislature in the language it employs, which is the only criterion where the language is plain, then it is not easy to see that the legislature did not intend to repeal the whole act, both that which was old and that which was new or brought in when the repealed act was passed." (pp. 129-130.)

And the same result must be reached if the section of 1886 be considered, not as a repeal of the section of 1884, but as a reiteration and reenactment of the provisions of the section of 1884 with some extension and addition. Then the repeal of the section of 1886 by the act of 1909 must be deemed to manifest the Congressional purpose to abrogate the provisions concerning the President's power of suspending tonnage duties which had been transferred by the legislature from the section of 1884 to the section of 1886, and thereafter stood as part of the law of 1886 rather than of the law of 1884, and derived their force from the later enactment. In this aspect the section of 1884, instead of being repealed by the act of 1886, was merged in the section of 1886, and the repeal of that section by the act of 1909 extinguished the merged provisions of the act of 1884. Such seems to me the true view of the matter. The section of 1886 from the time of its passage was the only statute in existence which gave to the President the power in question. The section of 1884 had gone out of exist-. The law after 1886 and until the enactment of the statute of 1909 was the same as if the section of 1884 had

ence.

never existed. That result came about, not by the passage of the new statute in 1886 repealing the section of 1884, but by the enactment then of a statute reasserting it. The reason for the common-law rule concerning the effect of a repealing statute does not reach to such case.

The view just stated finds corroboration and thorough expression in two New York cases, which are exactly pertinent. In the first case, People v. Supervisors, 67 N. Y. 109, the court said:

"With us the amendment of a statute or part of a statute, by making the same read as prescribed by the amendatory statute, thus incorporating all that is deemed desirable to retain of the old law in the new, is not regarded as a repeal of the parts thus transferred, but from the time of the passage of the new statute, the whole force of the enactment rests upon the later statute. Although the former act remains upon the statute book and is not repealed, either expressly or by implication, it is no longer the law of the land in respect to new cases that may arise. In the case before us, the substance and body of the act of 1867 was incorporated in and made a part of the act of 1873; the latter statute was but a modification of the details for giving effect to the intention of the legislature to reimburse those who had been illegally assessed and compelled to pay taxes upon securities exempt from taxation ***. A repeal of the later and more perfect statute, which was the only law in existence making the claims a county charge and providing for their payment, was indicative of an intention to revoke the concession that had been made, rather than of an intention to restore the first and more imperfect act. The change of purpose indicated. by the repealing statute was radical, going to the subjectmatter of the legislation, and was not limited to the more specific details and model parts of the act of 1873. The legislature may have supposed, although erroneously, that the act of 1867 was functus officio, not having been acted upon by the board of supervisors at its then next meeting. If so, this was a reason why that act should not be mentioned in the repealing statute. This, however, is but a slight circumstance. The broader ground upon which to