The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-04-09

between tax on property, of any kind and tax
uDon The income OF the same property viii fully APP
greatest and the abest constitutional lawyers In
the early history OF the government stood SaIluei
by the master hand OF Daniel Webster -
studied tho constitution whea he Tiled public station tina. he
be might examine" sss s Aans a's'
or a. q
and %pn a al ran 10 ss' SaeGn Of s
suited p learning. Aoof from tschiaeal.y
and nnteered by artificial rule, such question gaze oppo
prncps which % a,'d lis Snsr
HIS very statement was argument; bis inference seemed
demonstration.
Samuel Dexter such as he Is here portrayed, was
Ia Congress In 1874, when arose the first discussion
Mr. Dexter said" His COLLEAGUE INF SedgwicKJ had
stated the meaning OF direct taxes to be capitation
tax or general tax, on all the taxable property OF
(Mr. Nich0las) thought the meaning that all
taxes are direct which are paid by he citizen with
out being recompensed by the Consumer; but that
where the tax was only advanced anu repaid by the
consumer the tax was indirect. He thought that
both opinions were just and not inconsistent, though
that general tax on all taxable property was d.
rect tax because 1t was paid without being repaid ny
the consumer lAnnals OF Congress-, l7gs.52 ;, 80
! have endeayored TO show that "direct tax" as
political and legal phrase has definite meaning,
established by long and enlightened usage, both IN
the Old World and the New and that the phrase was
Understandings used by tile trainers OF the cOnslitl-
tuition In that instrument.
Taxes on land ana general assessment upon
property certainly have been held and are held, by
statesmen and lawyers to be direct taxes. We snail
now see that no valid and legal distinction can be
OF the same land, or between a general
assessment upon. property and tax upon
the income Of the same property, l., and IN,
movable rock on which l ground my whole argu-
mentthat u.s. to the adjudication sof the tribunal of
preme Court OF the United States. These Settle the
whole matter beyond doubt and place it out Of
the reach OF cayi
DECISIONS OF THE SUPREME COURT.
In an early case n796 the court laid down the doc
trine that tax land is direct tax in the follow
ing emphatic terms:-"Both in theory and practice
o tax on land Is direct tax" (Hylton VS.. the
United States, Dallas, ill.,
Now, 1t will appear by other decisions Of this court,
and Of other courts, that tax on the income Of land
is in effect, and in law the same thing as tax on
the land itself; and as the income tax Is tax on the
income of land as well as the income of other pro-
tax on land, as well as on other property; tax on
land-a direct taX-and, being unapportioned &C
cordng to the census it Is consequently unconstitu-
1t has long been well settled that devise of the
income Of land is In effect the same as devise Of the
the state Of New York the same doctrine is
held III Wendell, 29S; II Wendell, 4O2.) A
devise of the rents and profits of land or the
income OF land Is equivalent to devise OF the land
ITSELF (Washburn on Real Property, 2, 1852, and cases
there cted.) And the rule which has uniformly gov
erUeu tIc supreme OIL the States Is lidC
where any principle Of law establishing rule Of
real property has been settled in the State courts
the same rule will be applied by that court that
vs.. Chew, II Wheaton, 1851 Thus 1t Is the doctrine
OF the Supreme Court OF the United States well as
Of the STATE courts, that devise of the income Of
land Is the same thing as devise OF the land. And
the court has decided in several cases that in levy
ing taxes, as well as in the devise OF land, the sub
pronounced Illegal the various attempts which have
from time to time been made to lay some prohibited
tax by the mere evasion Of the express words Of the
There is certainly more plausible ground for con-
tending that there is q difference in principle be-
tween o tax on bill OF lading and a tax on the
article shipped than for distinction between tax
on the value OF land and o tax Oh the income OF
land. Yet in the case of Almy vs.. the State OF Cali
fornia IA Howard, ia, the Supreme Court of the
United States held that a tax or duty on bill OF
lading although differing In form from duty on the
that q law prohibiting tax on the article shipped
by necessary implication prohibits ajax on the bill
Of lading OF the same article.
Tie State of Maryland undertook to levy tax on
the occupation OF an importer, by requiring him to
pay for license to carry on MS business but Chief
Justice Marshall decided that this tax on i'm
ports, and, being laid by state, was unconstitu-
tionai and void. drown vs. Maryland, IL Wheaton,
In another case the Supreme Court of the United
States decided the exact question ut issue here,
whether tax on the income of a thing Is the same
us a tax on the thing itself, and held that a tax
which could not be legally levied on an Office
could not be legally levied on the income
follows that If an unapportloncd tax cannot con-
stitutonally be laid upon land 1t cannot constitu-
tonaily be laid upon the income OF land. This was
the case of DObbins W.. the Commissioners of Erie
County, in which the court decided that the emolu-
ments OF an Office could not be taxeddf the Office
t MsS eoars-o the highest state s o'I rSanas
and of the Supreme Court OF the United
States-are to stand, II devise OF the income
OF land is devise OF the land itself, If tax on the
income of an Office Is In erect the same as tax
the ofice, then the income tax, being tax on the
income OF property in general Is In legal principle
and being tax upon the income OF land,
as well as Of other property. is, IN effect,
tax on land. it is direct tax, and not being appor
toned to the census, the constitution requires
that all direct taxes must be app0rtOned, IL Is
laid without the authority Of the constitution and
against the authority of the constitution, and, as has
been decidedly Chief Justice Marshall, ian act repug
nant 10 the constitution cannot become the law Of
the land" (Marbury va. Madison, Cranch, 1879
The statute law OF the United States as well as
the decisions OF the courts recognize real estate and
the income of real estate to be the same thing. 1t
accounts succession to the income TO be a success
sion TO the estate. This Is done by the very act which
imposes the income tax. Section 127 OF that act lays
tax the succession to real estate; and II defines
q succession TO real estate To be every disposition OF
real estate by whercofany person shall become
benecaly entitled ITO any real estate or the income
thereof"
CONSEQUENCES OF A DIFFERENT DOCTRINE.
The case might be safely rested here on the de-
cision of the courts; but the matter is OF such grave
Importance that IL Is worth while to pursue some
what further and to consider what would he the
sequences OF different and opposite doctrine. The
states have generally assessed their taxes upon real
anu personal property and have considered this
direct taxation. (sce Report Of Oliver WOlcott, Jr
Secretary OF the Treasury, TO Congress, ON Direct
Taxes, 1857 George Nicholas, In the Virginia Con-
venion In 1888, speaking OF the State systems OF
taxation, said"fhe public treasures are supplied
by means of direct taxes" e. Elliot 99.) The lead
Ing statesmen OF later date have regarded gene
RAJ assessment on property-the prevailing mode OF
levying taxes In the States-as direct taxation 1.-THE
states have scaty resources without resort to heavy
direct taxes" (Webster In the Iayne debate.)
have already, l trust, established the point, by
reference to judicial decisions, that II general as
sessment on property is direct tax, the income tax
on the income OF property In general, is not less
direct tax 10 cOntrovert either branch OF this
proposition both must be controverted. Let MS
examine In what predcament reversal
OF the doctrine that general assessment on pro-
perry direct taxation would leave the State of New
York. The most important financial legislation Of
TINS state 10 based upon that principle. Our State
constitution (article z, sections 1O-1N provldes
TINT no debtaMith cernin executions therein sneci