The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1866-12-30
UNITED STATES SUPREME COURT.


ness In this sfaae-Ths PlsaaFy Chasaeter ~
Federal Taxasisa-Its UsunAss and shs Re.
ceptioDs In Respect % 1.-THE Bxpresc SD
Implied Limitations Under the Federal Cess
ssisstIen 81 the Power u Tazasies ~ the
0sascs-Pubnc Resicy. state and National
which will Do AIaineaineds
7As United Nan wu4ian Croe This case II upon
division 81 opinion Of the Judges OF the Circuit Court
OF the United states FOR the Southern district Of New
York. The defendant was indicted the 21st Of No
vsmbss 1885, for carrying and exercising in that dis
trict the business and profession Of lottery ticket
dealer without shs payment Of the e1oo required by the
statute Of the United States providing for atsrnA
revenue &c, Ho dsmurred generally 70 the indictment,
and there wa . joindee In demurrer BY tho United
States. Upon the hearing Of the demurrer question
arose upon which the opinions Of the judges OPP
posed and the point OF disagreement certified
soows:- the Law imposing the special tar In tho said
Indictment mentioned, and for nou.paymeat Of which by
the defendant the preferred and found valid
Or ID the said hw far u u authorizes tho levy and
collection Of the tag, unconstitutional and voidS
On the part OF tho government II submitted that the
enumerated powers conferred Congress by the con-
suton include tho right TO levy this ax:-'srhe Con-
duties, iIapoai. and sIc.s 10 pay the debts and pro.
vide for the defence and general welfare OF the
~, United III, = pInH :So.s. only to
posts and excuses shall BE- uniform throughout iha United
S.ates Second that no csptston or ohcr dlrec, tan
to fixed rule Third that no or duty shall be laid
articles exported from any State Thcso sxprsss ex
lion prove the univsrsaIisy of the grant The rs. two
exceptions do not limit the power. but rather furnbh
rules for is exercise Tho third exception s the only
that taken any succt matter ont NJ its operation
Not one Of Thorn has any application 20 ,hs subject mat
ter upon which tho IL levied In this case uulsss
uniform throughout tho United states
The tax Ia question Is levied npon snsiness or pro-
msa 20 e.Ss n sas on o q, va, 60 40 s
tax and WAS properly DESIGNATED "A excise which
IL defined by Webster in his dictionary, "An inland
duty impost. operating indirect tar the
sumsr laid originally ouiy certain products OF home
industry and consumption bet afterwards levied on
loaf suasr which srs now ,rsasfs11ed 70 the customs
IL In also evied licences 70 pursue certain trades and
deal In ccrlsin commodities" There can be quss-
ton therefore that the power granted 10 Congress
levy tho tax on this busiDess
A 70 the question whether this lew by the govern.
OF the state forbddng the exercise Of such bus.aess
within the STATE ~ IL cortsnded that the state has the
power /, las also Inc power !" cra no sasr. -
the business within 50 territory, which II has done
II be laid specific article by zach govsrnmsn,
Tooth STATE aud fcdorsD and the owner happens 10 he
unable 10 pay both, and the article ~ only sucsnt
pay one Counsellor Kent has answered that the federal
tax In paramount (Knprs Com, eleventh edition, l2a,
IT. 10 ths exercise OF federal power such . busnes.
orbidden by the sis,e comes within ~ range n Con.
gross has the power undsr the constitution 70 regulate
H. hsn state regulation must bs exercised 10 subofdua
ton TO the federal authority II 10 clear that " the
pubic policy o. the s,ae that this business should
no carried on bn Congress has declared such pnblc
policy The tsx Is levied upon oil persons who carry
this business, whether they carry lawfully az M.
lawfully Ihs policy o. Se eaers, isssi.'urs :. 70 YER
tho uniform throughout the United stases To some
OF the states the business Is lawful and %
revenue for The state In iLess sa,os the psnon carry
Ing the busiross pays tho STATE license he
privilege No ono dosbs his ability ray additional
lax to tho federal government Ths construction claimed
~ defendant that n
requires tho lawful dealer carry his business sub.
,es to the double imposition Of STATE AID
that invsdes the rule Of uDiformify prsscrbsd Tor
the power u for6d the Of tho busnsss o. s,
Congress has the power 20 Iecazs The does
require ne snrmsIse o. o.her propagation may be
power the szto may hsniah the busnes from i terri
Tory ard thus INDIRECTLY take he sutec, ns,er from
s nS sPs snS o sss sas. { No .as sa ss
here Notwithstanding ths prohibition the bufiness con
time. TO be carried 90 q the state and s upon ho
busif THAI the federal II levied Conues. dosr
not create the bas.rrs and then TAI H. but amply icyiss
the Tar where u hnds tho ousnsw In operation. IA s
IN any state, thai proceeds ny tho rule Of uni
fornisy No question sf puzzle policy can be set np
ns.ns., .'o oe AZ, .,s 2, '' %sy .i sne
hlbton II may pas over the Profitable businnrs
and make the borden fail upon The Improbable
II rsy Is, the unlawful business and excmp, the lawful
business or, vhs, Is wore, Tar what is lawful sod
ezofnp, what a unlawful Congress which has The
power also tho exponent ~ the pablo poiicy is the
exercise OF the power A. hes bssu aid for the par
posss OF the srransnt the sta,s might BY prohbtion
Drive irf b1ynsss out II 10 territory, and remove II
fran fe5esI taysiob. bui N this true 81 e u s oaiy
Incidental 10 state policy aud 10 relieve the State
from 90 injurcuf subject Bet while the business "a
carried In The State Is not IN the power Of the eSIs
90 shield FROM the federal tar The State cannot BY
direct enactment eIsmp; any property business Ia
slAi@ from federal TAXATION aud whsi u cannot do
directly u canBot do Indirectly Pubc policy 4, 81 20
avail here for while there ~ state policy Tor syefnp
tim tbsro federal policy fos tssslion tne policy 10
local ana subordinate the other IL national and para
mount
The following osses arc cited 10 support me positions
msintsned N th- foregoing brsf--Tbal the plenary
character OF federal taxation n cosrsensve with the
territory Of the United sisi"sI gboronEh Blake
Wheat al7 That n stands 20 al taxable objects,
without any erceytion only 70 exports from .
Stately li0n vs. Tntsf States, Doll ia That The
poser Of isrstion BY the Sa,e though only expressly
linl,~d by the constitution 81 the United states
imports and exports. hss implied ilmtsfions A Eis.s
ths salary Of ocer of the United States
Dohbin Erie Co, 10 Peters s3s; nor stc~t u The
rnitnd states. fWss,on Charleston Pesrp t4oD: nor
such nsa agency o. the Tinted States tho Bsnk Of
the United states and Nccul'ock Maryland, Wheat
SiS; osborn Va United satss Bank. Wheat 1ns.
AlfhouKt tho power Of taxation In concurrent In the
United s,stss, and ths ssis, 70, "snch the para.
mount c,.~sare oi ia. Constitution that capacity
withdraw snbiett from the srtion ~ % power