# Fairbank v. United States/Dissent Harlan

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* Opinion of the Court
* Dissenting Opinion Harlan
United States Supreme Court
181 U.S. 283
Fairbank v. United States
Argued: December 13, 1900. --- Decided: April 15, 1901
Mr. Justice Harlan (with whom concurred Mr. Justice Gray, Mr. Justice White and Mr. Justice McKenna) dissenting:
By the act of June 13th, 1898, chap. 448, imposing certain stamp duties, it was declared that there should be levied, collected, and paid the sum of ten cents 'for and in respect of the vellum, parchment, or paper upon which . . . shall be written or printed by any person or persons or party who shall make, sign, or issue the same, or for whose use or benefit the same shall be made, signed, or issued, . . . bills of lading or receipt (other than charter party) for any goods, merchandise, or effects to be exported from a port or place in the United States to any foreign port or place. . . . Provided, That the stamp duties imposed by the foregoing schedule on manifests, bills of lading, and passage tickets shall not apply to steamboats or other vessels plying between ports of the United States and ports in British North America.' 30 Stat. at L. 448, 451, 458, 459, 462, §§ 6 and 24, schedule A.
It is contended that this stamp duty is forbidden by the clause of the Constitution declaring that 'no tax or duty shall be laid on any articles exported from any state' (art. 1, § 9); and that the stamp duty here in question was, within the meaning of that instrument, a tax or duty on the wheat received by the Northern Pacific Railway Company to be carried from Minnesota to Liverpool, and for which the company issued its bill of lading.
We are of opinion that this contention cannot be sustained without departing from a rule of constitutional construction by which this court has been guided since the foundation of the government. Let us see to what extent Congress has exercised the power now held not to belong to it under the Constitution.
As early as July 6th, 1797, Congress passed an act entitled 'An Act Laying Duties on Stamped Vellum, Parchment, and Paper.' By the 1st section of that act it was provided that from and after the 31st day of December thereafter there should be 'levied, collected, and paid throughout the United States the several stamp duties following, to wit: For every skin or piece of vellum, or parchment, or sheet or piece of paper upon which shall be written or printed any or either of the instruments or writings following, to wit: . . . Any note or bill of lading for any goods or merchandise . . . to be exported to any foreign port or place, twenty-five cents.' 1 Stat. at L. 527, 528, chap. 11, § 1. The same act provided: 'That if any person or persons shall write or print, or cause to be written or printed, upon any unstamped vellum, parchment, or paper (with intent fraudulently to evade the duties imposed by this act), any of the matters and things for which the said vellum, parchment, or paper is hereby charged to pay any duty, or shall write or print, or cause to be written or printed, any matter or thing upon any vellum, parchment, or paper that shall be marked or stamped for any lower duty than the duty by this act payable, such person so offending shall for every such offense forfeit the sum of one hundred dollars.' Id. § 13.
By an act approved December 15th, 1797, chap. 1, it was provided that the duties prescribed by the act of July 6th, 1797, should be levied, collected, and paid from and after June 30th, 1798, and not before. 1 Stat. at L. 536.
The above act of July 6th, 1797, was amended in certain particulars by an act approved March 19th, 1798, chap. 20, by which certain provisions were made for furnishing the vellum, parchment, or paper required by the former act to be stamped and marked. 1 Stat. at L. 545.
It not having occurred to any of the great statesmen and jurists who were connected with the early history of the government that enactments such as that of July 6th, 1797, violated the Constitution, Congress passed another act on the 28th day of February, 1799, chap. 17, imposing a duty of 10 cents 'on every skin or piece of vellum or parchment or sheet or piece of paper on which shall be written or printed any or either of the instruments following, to wit: . . . Any note or bill of lading, or writing or receipt in the nature thereof, for any goods or merchandise . . . to be exported to any foreign port or place.' 1 Stat. at L. 622.
Congress, still supposing that it was acting within the limits of its powers under the Constitution, again, by the act of April 23d, 1800, chap. 31, amended and extended that of July 6th, 1797. By the latter act a general stamp office was established, and provision was made, among other things, for the punishment, by fine and imprisonment, of those who, with the intent to defraud the United States of any of the duties laid by the original act of 1797, counterfeited or caused to be forged or counterfeited, any vellum, parchment, or paper provided for by Congress under that act. 2 Stat. at L. 40, 42. The act of April 23d, 1800, was amended by an act passed March 3d, 1801, chap. 19, by which it was provided that deeds, instruments or writings issued without being stamped could be thereafter stamped and become valid and available as if they had been originally stamped as required by law. 2 Stat. at L. 109.
By an act approved April 6th, 1802, chap. 19, internal duties on 'stamped vellum, parchment, and paper' were discontinued,-for the reason, doubtless, that the further imposition of such duties was unnecessary. 2 Stat. at L. 148.
As late as March 3d, 1823, Congress passed a general statute in execution of the act of April 23d, 1800, establishing a general stamp office. 3 Stat. at L. 779, chap. 55.
By an act approved July 1st, 1862, chap. 119, Congress provided that there should be levied, collected and paid a stamp duty of 10 cents 'for or in respect of the vellum, parchment, or paper' upon which was written or printed any 'bill of lading or receipt (other than charter party) for any goods, merchandise, or effects to be exported from a port or place in the United States to any foreign port or place.' 12 Stat. at L. 432, 475, 479, 480, §§ 94, 110. By the act of June 30th, 1864, chap. 173, the stamp duties provided by the act of July 1st, 1862, were continued in force until August 1st, 1864, and it was provided that from and after the latter date there should be levied, collected and paid a stamp duty of 10 cents 'for and in respect of the vellum, parchment, or paper upon which shall be written or printed' any 'bill of lading or receipt (other than charter party) for any goods, merchandise, or effects to be exported from a port or place in the United States to any foreign port or place.' 13 Stat. at L. 223, 291, 292, 298, §§ 151, 170, schedule B. But by an act approved June 6th, 1872, chap. 315, all the taxes imposed under and by virtue of schedule B of § 170 of the act of June 30th, 1864, and the several acts amendatory thereof, were abrogated from and after October 1st, 1872, excepting only the tax of 2 cents on bank checks, drafts, or orders. 17 Stat. at L. 230, 256.
We have referred somewhat in detail to the above enactments for the purpose of bringing out clearly the fact that stamp duties were imposed specifically for and in respect of the vellum, parchment, or paper upon which was written or printed a bill of lading for goods or merchandise to be exported to foreign countries, and had no reference to the kind, quality, or value of the property covered by such bill of lading. Congress ex industria declared in each act that the tax was for and in respect of the vellum, parchment, or paper upon which the bills of lading were written or printed. This fact plainly distinguishes the present case from Almy v. Califormia, 24 How. 169, 16 L. ed. 644, which involves the validity, under the Constitution of the United States, of a statute of California passed April 26th, 1858, imposing a stamp tax on bills of lading for the transportation from that state, to any port or place without the state, of any quantity of gold or silver coin, in whole or in part, gold dust, or gold or silver in bars or other form. This court, after observing that a tax laid on the gold or silver exported from California was forbidden by the clause declaring that 'no state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws,' said: 'In the case now before the court, the intention to tax the exports of gold and silver, in the form of a tax on the bill of lading, is too plain to be mistaken. The duty is imposed only upon bills of lading of gold and silver, and not upon articles of any other description. And we think it is impossible to assign a reason for imposing the duty upon the one and not upon the other, unless it was intended to lay a tax on the gold and silver exported, while all other articles were exempted from the charge. If it was intended merely as a stamp duty on a particular description of paper, the bill of lading of any other cargo is in the same form, and executed in the same manner and for the same purposes, as one for gold and silver, and, so far as the instrument of writing was concerned, there could hardly be a reason for taxing one and not the other. In the judgment of this court the state tax in question is a duty upon the export of gold and silver, and consequently repugnant to the clause in the Constitution hereinbefore referred to.' This interpretation was demanded by the words of the statute of California, which provided: 'The following duty or stamp tax is hereby imposed on every sheet or piece of paper, parchment, or other material upon which may be written, printed, engraved, or lithographed, or other means of designation, of either of the following-described instruments, to wit: Any bill of lading, contract, agreement, or obligation for the transportation or conveyance from any point or place in this state to any point or place without the limits of this state, of any sum, amount, or quantity of gold or silver in bars or other form, by or between any person or persons, firm or firms, corporation or corporations, or other associations, either as principal or agent, or attorney or consignee, or consignor, to wit: For one hundred dollars, thirty cents; and all sums over one hundred dollars, a stamp tax or duty of one fifth of one per cent upon the amount or value thereof, the payment whereof to be included in the bill of lading, contract, or agreement, or obligation for the transportation or conveyance thereof, as in this section provided, having attached thereto or stamped thereon a stamp or stamps expressing in value the amount of such tax duty,' etc. Stat. Cal. 1858, p. 305; Id. 1857, p. 304.
The difference between the California statute and the act of Congress is manifest. By the former the amount of the tax upon bills of lading depended upon the value of the gold or silver specified in them and exported, while the latter imposed a tax of only 10 cents on the vellum, parchment, or paper upon which was written or printed a bill of lading for property to be exported, without regard to its quantity or value. If Congress had graduated the stamp duty according to the quantity or value of the articles exported, there might have been ground for holding that the purpose and the necessary result was to tax the property, and not the vellum, parchment, or paper on which the bill of lading was written or printed.
This rule of interpretation was recognized in Pace v. Burgess, 92 U.S. 372, 375, 23 L. ed. 657, 659. That case arose under the act of July 20th, 1868, chap. 186, imposing duties on distilled spirits and tobacco, and for other purposes, and which provided that 'all tobacco and snuff intended for export, before being removed from the manufactory, shall have affixed to each package an engraved stamp indicative of such intention, to be provided and furnished to the several collectors, as in the case of other stamps, and to be charged to them and accounted for in the same manner; and for the expense attending the providing and affixing such stamps, twenty-five cents for each package so stamped shall be paid to the collector on making the entry for such transportation.' 15 Stat. at L. 125, 158, § 74. The contention was that the statute imposed a tax or duty in violation of the constitutional prohibition of taxes or duties 'on any articles exported from any state.' Art. 1, § 9. This court overruled that contention upon the ground that it was apparent from the statute that 'the stamp was intended for no other purpose than to separate and identify the tobacco which the manufacturer desired to export, and thereby, instead of taxing it, to relieve it from the taxation to which other tobacco was subjected. It was a means devised to prevent fraud and secure the faithful carrying out of the declared intent with regard to the tobacco so marked. The payment of 25 cents or of 10 cents for the stamp used was no more a tax on the export than was the fee for clearing the vessel in which it was transported, or for making out and certifying the manifest of the cargo.' The court added-and this is important in its bearing on the case before us: 'It [the stamp] boreno proportion whatever to the quantity or value of the package on which it was affixed. These were unlimited, except by the discretion of the exporter or the convenience of handling. The large amount paid for such stamps by the plaintiff only shows that he was carrying on an immense business.' As in Pace v. Burgess, so in the present case, the stamp duty imposed was without any reference to the quantity or value of the property.
In our judgment, the small stamp duty imposed by the act of 1898 specifically upon the vellum, parchment, or paper upon which was written or printed a bill of lading for property, of whatever value, intended for export, cannot be regarded as a duty on the property itself.
It is said that the power to tax is the power to destroy, and that if Congress can impose a stamp tax of 10 cents upon the vellum, parchment, or paper on which is written a bill of lading for articles to be exported from a state, it could as well impose a duty of $5,000, and thereby indirectly tax the articles intended for export. That conclusion would by no means follow. A stamp duty has now, and has had for centuries, a well-defined meaning. It has always been distinguished from an ordinary tax measured by the value or kind of the property taxed. If Congress, in respect of a bill of lading for articles to be exported, had imposed a tax of $5,000 for and in respect of the vellum, parchment, or paper upon which such bill was written, the courts, looking beyond form and considering substance, might well have held that such an act was contrary to the settled theory of stamp-tax laws, and that the purpose and necessary operation of such legislation was, in violation of the Constitution, to tax the articles specified in such bill, and not to impose simply a stamp duty. Here, the small duty imposed, without reference to the kind, quantity, or value of the articles exported, renders it certain that when Congress imposed such duty specifically on the vellum, parchment, or paper upon which the bill of lading was written or printed, it meant what it so plainly said; and no ground exists to impute a purpose by indirection to tax the articles exported.
There is another view of this case which presents considerations of a serious character. In the opinion just rendered it is conceded that a stamp tax on vellum, parchment, or paper on which is printed or written a bill of lading of goods to be shipped out of the United States could be sustained if regard be had to the practice of the government since its organization. But that practice, covering more than a century, must, it seems, go for naught.
In Stuart v. Laird (1803) 1 Cranch, 299, 309, 2 L. ed. 115, 118, the question arose whether the justices of this court had the right, although authorized by an act of Congress, to sit as circuit judges, not having been appointed as such nor having any distinct commissions for that purpose. This court, speaking by Mr. Justice Patterson, said: 'To this objection, which is of recent date, it is sufficient to observe, that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.'
In Prigg v. Pennsylvania, 16 Pet. 541, 608, 621, 10 L. ed. 1061, 1086, 1091, this court, speaking by Mr. Justice Story, after referring to the section of the act of February 12th, 1793, requiring a certificate to be given, under certain circumstances, to the owner of a fugitive slave apprehended under that act, said: 'So far as the judges of the courts of the United States have been called upon to enforce it and to grant the certificate required by it, it is believed that it has been uniformly recognized as a binding and valid law, and as imposing a constitutional duty. Under such circumstances, if the question were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognition of its validity, would, in our judgment, entitle the question to be considered at rest; unless, indeed, the interpretation of the Constitution is to be delivered over to interminable doubt throughout the whole progress of legislation and of national operations. Congress, the executive, and the judiciary have, upon various occasions, acted upon this as sound and reasonable doctrine,'-citing, among other cases, that of Stuart v. Laird, 1 Cranch, 229, 2 L. ed. 115.
In The Laura, 114 U.S. 411, 416, sub nom. Pollock v. Bridgeport S. B. Co. 29 L. ed. 147, 148, 5 Sup. Ct. Rep. 881, 883, in which the question arose as to the validity of an act of Congress approved March 3d, 1797 (1 Stat. at L. 506, chap. 13), authorizing the Secretary of the Treasury to remit a forfeiture of property after final sentence of condemnation, this court said: 'Touching the objection now raised as to the constitutionality of the legislation in question, it is sufficient to say, as was said in an early case, that the practice and acquiescence under it, 'commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.' Stuart v. Laird, 1 Cranch, 308, 2 L. ed. 118. The same principle was announced in the recent case of Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57, 28 L. ed. 349, 351, 4 Sup. Ct. Rep. 279, 281, where a question arose as to the constitutionality of certain statutory provisions reproduced from some of the earliest statutes enacted by Congress. The court said: 'The construction placed upon the Constitution by the first act of 1790 and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is, of itself, entitled to very great weight; and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is [almost] conclusive." This quotation in The Laura from the opinion in Sarony's Case was defective in that it omitted, by mistake in printing, the word 'almost' before 'conclusive.' But the error does not affect the substance of the decision rendered, as the court, in the case of The Laura, approved and reaffirmed what was said in Stuart v. Laird.
In Schell v. Fauche, 138 U.S. 562, 34 L. ed. 1040, 11 Sup. Ct. Rep. 376, this court, speaking by Mr. Justice Brown, cited with approval what is above quoted from Stuart v. Laird, adding: 'In all cases of ambiguity, the contemporaneous construction, not only of the courts, but of the departments, and even of the officials whose duty it is to carry the law into effect, is universally held to be controlling.'
In McPherson v. Blacker, 146 U.S. 1, 27, 36 L. ed. 869, 874, 13 Sup. Ct. Rep. 3, 7, this court, speaking by the present chief justice, said: 'The framers of the Constitution employed words in thier natural sense; and where they are plain and clear, resort to collateral aids to interpretation is unnecessary and cannot be indulged in to narrow or enlarge the text; but where there is ambiguity or doubt, or where two views may well be entertained, contemporaneous and subsequent practical construction are entitled to the greatest weight. Certainly, plaintiffs in error cannot reasonably assert that the clause of the Constitution under consideration so plainly sustains their position as to entitle them to object that contemporaneous history and practical construction are not to be allowed their legitimate force; and, conceding that their argument inspires a doubt sufficient to justify resort to the aids of interpretation thus afforded, we are of opinion that such doubt is thereby resolved against them, the contemporaneous practical exposition of the Constitution being too strong and obstinate to be shaken or controlled. Stuart v. Laird, 1 Cranch, 299, 309, 2 L. ed. 115, 118.'
Cases almost without number could be referred to in which the same principles of constitutional construction are announced as in the cases above cited. In the latest case-Knowlton v. Moore, 178 U.S. 41, 56, 44 L. ed. 969, 975, 20 Sup. Ct. Rep. 747, 753-this court had occasion, in its review of taxing legislation by Congress, to refer to the act of July 6th, 1797, the very act in which Congress first imposed a stamp duty on vellum, parchment, or paper upon which was written a bill of lading for articles to be exported. Touching the objection that Congress could not constitutionally impose, as by that act was imposed, a tax on inheritances or legacies, this court, speaking by Mr. Justice White, said: 'It is to be remarked that this proposition denies to Congress the right to tax a subject-matter which was conceded to be within the scope of its power very early in the history of the government. The act of 1797, which ordained legacy taxes, was adopted at a time when the founders of our government and framers of our Constitution were actively participating in public affairs, thus giving a practical construction to the Constitution which they had helped to establish. Even the then members of the Congress who had not been delegated to the convention which framed the Constitution must have had a keen appreciation of the influences which had shaped the Constitution and the restrictions which it embodied, since all questions which related to the Constitution and its adoption must have been, at that early date, vividly impressed upon their minds. It would, under these conditions, be indeed surprising if a tax should have been levied without question upon objects deemed to be beyond the grasp of Congress because exclusively within state authority.'
Many cases have been cited which hold that the uniform contemporaneous construction by executive officers charged with the enforcement of a doubtful or ambiguous law is entitled to great weight, and should not be overturned unless it be plainly or obviously erroneous. If such respect be accorded to the action of mere executive officers, how much greater respect is due to the legislative department when it has, at different periods in the history of the country, exercised a power as belonging to it under the Constitution, and no one in the course of a century questioned the existence of the power so exercised. Besides, we have here a question of the constitutional power of Congress under the Constitution, and not a question relating merely to the practice of executive officers acting under a law susceptible of different interpretations. No one of the acts of Congress imposing a stamp duty on the vellum, parchment, or paper on which a bill of lading of articles to be exported was written can be classed among laws that are doubtful or ambiguous in their meaning. No person, however skilful in the use of words, who attempts to frame a statute imposing a stamp duty, pure and simple, on such vellum, parchment, or paper, could possibly employ language expressing that thought more distinctly than Congress has done in the several acts relating to stamp duties of that character. The words of those acts are clear, and are capable of but one construction; and the court determines the case upon the ground alone of want of power in Congress to impose the stamp duty in question.
Without further discussion or citation of authorities, we submit that the denial, at this late day, of the power of Congress to impose what is strictly a stamp duty on the vellum, parchment, or paper upon which is written or printed a bill of lading for goods to be exported to a foreign port or place, involves not only a departure from canons of constitutional construction by which it has been controlled for more than a century, but, in the words of Prigg v. Pennsylvania, delivers the interpretation of the Constitution 'over to interminable doubt throughout the whole progress of legislation and of national operations.' Practically no weight has been given in the opinion just filed to the fact that the power now denied to Congress has been exercised since the organization of the government, without any suggestion or even intimation by a single jurist or statesman during all that period that the Constitution forbade its exercise. It is said that the question of power never was presented for judicial determination prior to the present case, and therefore this court is at liberty to determine the matter as if now for the first time presented. But the answer to that suggestion is that, in view of the frequent legislation by Congress and its enforcement for nearly a century, the question must have arisen if it had been supposed by anyone that such legislation infringed the constitutional rights of the citizen. Within the rule announced in Stuart v. Laird, and in other cases, the questions should be considered at rest.
In view of the importance of the case, we have deemed it appropriate to state the reasons of our dissent from the opinion and judgment just rendered.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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