The national Republican., 1866-12-29
Fhs Csurss.

SuPRENE CoURr OF THE UNITED STArEs.-
On motion Of Mr.. Bv.rss, W. ". ". HoFsrl.nd, i; an
Esq, Of Connscticut, was sdmittsd an attorney and
counsellor Of this court.
No. s3S. The United statsS plaintiff In error,
". Nancy Swain This cause was argued BY Mr..
Attorney asnsral stsnbsry for the plaintiff In
orror, and BY Mr. 6snpot for the defendant In
No. 90. TIE steam vessel Moses Taylor, &c.,
plaintiff In sror VI. Wilson Hammons. This
cause was argued By Mr. Pisrrspont and Mr..
Evarts for the plaintiff In error, and submitted on
printed argument BY Mr.. Cope for the dsfsndant
Adjournsd until to.morrow st II o'clock.
FsIbAr. December 9s
The Nsw York Lottsry Casss-Po,esr Of the
Federal Government 10 Tar Bn1nsn Prohs5ited
6y tie STATE Whers Tarsd-T The United Stat. o.
William Crof.-This case 10 upon . division Of
opinion Of the judges Of the Circuit Court Of the
York.
The defendant was indicted on the 2lst Of No.
ysubsr, 1855, for carrying on and sxsroisins In
that district the business and profession Of lot
tsry ticket dealer .itho.. the payment Of ths 800
providing for internal revenue, 10. He dsmurrsd
generally 70 the Indictment and there was.
joindsr In demurrer BY the United States. Upon
the hearing Of the demurrer question arose upon
which the opinions Of the judges were opposed.
lows Il the law imposing the special tax in the
said indictmsnt and for men payment Of which
By the defendant the same was preferred and
found valid, or is the said law, far II suthor
iis. =. :yy ssS collection Of The ssz uneonstsa.
On the part Of the Government Il Is submitted
that the enumerated powers conferred on Congress
By he Consultation include the right to levy this
tag. The Congress shall have the right to lay and
collect taxss. duties, imports and sxoisss to pay
a L. l.lA II l.. r.. A.. I.k-
general welfare Of the United States" This is .
plsnary power, subject only to the following limi
tstionS:
1st That all duties, imports and sxcises shall bs
uniform throughout the United Statss.
ID. That no ospitstion or other direct tax shall
bs laid unless In proportion 10 numbsrs according
TO hxsd rule
Sd. That no tax or duty shall bs laid on articles
exported from any State.
These express exceptions. according to an sstsb.
shsd rule Of construction, prove the univsrsality
Of the grant. Tie ast two exceptions do not limit
the power. bat rather furnish rules for i exercise
The third exception 10 the only one that takes any
subjsct-matter out Of its operation. Not one Of
them has any application TO the subjsct-mattsr
upon which the tax 10 levied in this CASE unless II
Be that which prssoribss that all excses shall
BE- uniform throughout the United States.
The tax in question 10 levied upon business or
profession. II 10 not direct tax, for that seems
to bs limited to cspitation taIs: on lands !tissn
indirect ta1 and may properly be designated as an
tionary: "An inland duty or impost operating as an
indirect tax on the consumer laid originally only
on certain products Of homo industry and consump-
tion, but sftsrwards levied on some imported ar
tielss, - tobocco, wine, raisins, and loaf sugar,
which are now Transferred to ths oustoms II 10 also
levied on licenses to pursue certain trades and deal
| In certain commodities."
There can bs no question therefore that the
power 10 granted to Congress to levy the tax on this
business.
A. to the question Whistler this levy BY the Gov.
srnmsnt in the State Of New York is prohibited BY
the law Of the State forbddng the exercise Of such
. business within the State, II Is oontsndsd that
the State has the power to tax this business oon-
current with the Federal power. It has also the
power TO forbid the exercise Of the business within
its territory, which II has DONE II tax bs laid
on specific article BY each government, both State
and Federal, and the owner happens to bs unable
70 pay both and the article Is only sufficient to pay
one, Chancellor Kent has answered that the Fed.
sral tax 10 paramount. (Ksnps Com, 11th edition,
| 423l.)
IT, in the exercise Of Federal power, such bust.
ness forbidden by tho stats) comes within It's
range II Congress has the power, under the Consti
tuition, to regulate thsnl state'rsgulations must
be exercised In subordination to the Fsdsral au.
thority.
It clear that 10 the public policy Of the State
that this business should not be carried out; but
Congress has declared no such public policy. Tho
tax Is levied upon all persons who carry on this
business, whether they carry It on lawfully or un-
lawfully. The policy Of the Federal legislation 10
TO tax the business everywhere, and Furthermore,
| 10 make the tax uniform throughout the United
States In some Of the States the business 10 law
ful and Is one source Of revenue for the State In
those States tho persons carrying on the business
No one doubts his liability to pay an additional
tax to the Federal Government The constructisn
claimed by the defendant involves these oonse-
qusnoes that II requires the lawful dealer TO carry
on his business subject to the double imposition Of
State and Federal taxation, and allows the unlsw.
full dealer to escape from both: and next, that II
nvadss the rule Of uniformity prescribed for Fede.
| raj taxation It 10 not ooutendsd that the State
has not the power to forbid the exercise Of the
business, or that Congress has the power to legazs
Il. The case doss not require the animation Of
It may bs admitted, sr graiia, that in the OK.
| srcise OF It's prohibitory power the State may
Danish the business from its territory and thus In.
directly take the subsot.mattsr from the operation
Of Federal tsxstioni for where tho businss. Is not
found, Of course there can be NO tax levied. But
here, notwithstanding the prohibition. this bust.
ness continues TO be carried In the State, and It
Il upon the business that the Federal tar is levied
Congress does not create the business and then tax
II, but simply leviss the tax whore II nnds the
business In operation.
| It ID too clear for argument that Congress may
tax any business In any State 90 that 1t proceeds
BY the rule Of uniformity. No question Of public
policy can DO oct up sgsinit the clear exercise Of
this power. It may tax tho business to any extent.
even to absolute prohibition. 1t may pass over
the profitable business, and make the burden fall
upon tho improbable. II may tax the unlawful
business and exempt the lawful business or what
10 worse, tax what is lawful and exempt what Is
lawful. Congress, which has the powor, 10 also the
exponent Of the public policy In the exercise ofths
power. As has BEEN said. for the purposes Of argu
msnt, the State might, by prohibition, drive tho
business out Of its territory and so remove 1t from
Federal taxation. But II this is true at all It 10
only true as incidental to State policy and to re-
| lieve tho State from An injurious subject. But
while the business Is carried on In the State It 10
not in the power Of the State to shield It from the
Federal tag.
The State cannot by direct enactment exempt
any property or business In the State from Federal
taxation, and what It cannot do directly It cannot
do indirectly. Public policy is Of no avail hsre,
for while thers Is State policy for exemption there
10 Federal policy for taxation Ono policy Is local
and subordinsts, tho ether Is national and para.
mount.
Tho following cases arc cited to support tbs posi-
tions maintained In the foregoing brief That the
plsnary character Of Federal taxation Is co-sxten
iive with the territory Of the United statss-Lough-
borough vs. Blake, Wheat. ,3l7 that 1t extends to