The New York herald., 1869-01-10
ay IMPORTANT DECISION.

AN IMPORTANT DECISION.
The Congressional WhisISey Tax Law in
Court-Quession About Its Conslitutionnlity--
The LAW Reviewed and Sustained
From the Chicago Tribune. Jan. IL
The act Of Congress imposing taxes on distilled
spirits ana tobacco of July 20, 1865, was lately at
tackled in cause In the United States Circuit Court.
II was argued during three days that nearly every
provision OF 1t is unconstitutional and void, and
that each of the provisions was obnoxious to several
PROVISIONS or the fundamental law. There had been
a careful preparation Of the argument, and the
attorney who appeared to cause d judicial appeal of
all OF i've months to the production Of the argument
which he read. decision has been made by
Judge Drummond in which the law IS sustained as
follows:-
THE CASE STATED.
the proceeding was by Leinuel W. Mason, the de-
PENDANTS being L. A. Rollins, the Commissioner OF
Internal Revenue and others. oflcers acting under
him. 1t was an application for an injunction against
the defendants as Officers acting under the internal
leased OF the owner lot OF land near Clintonvie,
Kane county, IN this State. for the term Of three
with the alcohol works. &C., thereon. The bill also
alleges that by the act OF Congress OF July 90 1885,
ers and rectifyers, and particularly in requiring
bond IN large penalty to be executed before they
the use OF any distillery rectfying establishment
within six hundred feet OF any licensed distery.
The bi further states that the fifth and seventh sec
tlons OF the act OF March ST. 1868, unconstitu-
tional and void, and that in consequence OF the
threatened interference OF the officers OF the govern
ment the plaintiff rs afraid to commence the prose-
cution OF his business and Is unable to find any
to assist him in carrying 1t on.
WHAT 1T MEANS.
II will be seen that the object OF the bill is to
strain the defendants from carrying various pro-
visions Of the laws referred 10, ana which are
claimed TO be an unauthorized interference with the
plaintiff In the pursuit o. lawful business. lt y
not alleged that the plaintiff has done ANYTHING ex
cept to take the lease that he has been stopped
in any thing which he has begun.
CONGRESSIONAL POWER.
Under the constitution Congress has power to
lay and collect taxes, duties imposts ana excise,
and also the authority to make all laws necessary
and proper TO carry that power into effect il may
be admitted that In doing this Congress cannot vlo-
late any rights secured by other provisions OF the
constitution. but, excepting this restriction Tho
power Ia absolute. There Is as viii be seen power
to collect the taxes and that implies the use OF all
proper and necessary means To make the collection
enectual. Property cannot be subject to unreason-
able seizures, the house or person OF a citizen
subject 10 unreasonable searches; nor can he be de-
prived OF his property without due process OF law.
BOND.
A to the first special grouna OF complaint the re-
| quiring OF bond as condition precedent to the
tilling, the right Of Congress to collect the tax
\ being undoubted everything that is pro.
| duced by dstiller or rectfer may be subject by
| law 10 the tax Congress has the right TO render
the collection OF the that is due upon that busi
product effectual and II 1t Is that the
character Of the business is such that irresponsible
parties may engage in the business under the drec.
ton Of capitalists who are in the background, and
VINO thus seek 70 avoid the proper responsibility
certain that the tax which is due upon the product
shall be made available to the government, there
can be no doubt think that as a means OF accom-
plishing that result Congress may require bond OF
the person who proposes 30 engage In that kind Of
under the circumstances OF the case, IL IL
able condition, and cannot say that II ~ not 10 this
case.
THE CONNECTIONS CUT orr.
AS 10 the second objection that " made. the ex-
stence OF disery within GOO feet OF rectIfyinQ
establishment 1t Is claimed that this is an unwal
ranable interference with the and disposition OF
property; that the owner OF property he's right TO
appropriate u In any way 10 the performance OF
lawful business. But, II the kind OF business To
which the owner wishes 10 appropriate his property
Is such TO afford great and unusual facilities for
secreting what may bc the actual product OF bust
ness, and thus evade the tax which ~ due 10 the
government, then the Congress OF the United States
within the authority which II has to collect the tax
which may be Imposed, can prescribe the modes and
conditions and limitations under which that busl-
ness can be transacted: and II 1t has appeared bY
observation and experience, that the construction
ana use OF dstillery within certain NumDer OF
feet OF rectfying establishment enables those who
use the and the other n the prosecution OF
TAX which Is due, Congress may prohibit this mode
OF doing the business, thus anording these great ia
cilities for avoiding tie tax.
Experience has shown, think, that there has been
no one thing used IN carrying on the distling and
reciifying business which has been thoroughly
calculated 20 evade the payment or taxes a. the con-
struction OF these two establishments 30 near to each
| other; the ease with which connections could be
| made between them was such Is to enable the
ment the amount OF the product, and thus escape
the payment Of the tax. Therefore, as 1t seems TO
ME, tnis particular mode which Congress had
right TO prescribe, IN order 10 make the collection
Of the tax cnctual.
pCg PROCESS Of LAW
II may he conceded that the question whether a
seizure or search ~ unreasonable not, IN the
language OF the constitution, Isa judicial ana not
legislative question: but, stil In determining
whether a seizure Is is not unreasonable, we
have TO look at all the circumstances under which
| IL is made For example, al ilrst blush nothing
4 for ~
| ing 0fficer of the government 10 strike q bal
against public debtor, aud TO issue q
coycry OF that balance. u II not Judicial detcrml-
nation, II h not judicial process by whca the pro-
perty OF the debtor under such circumstances can
be taken for the satisfaction OF the debt but II IL
| executive process aud has been expressly decided
y be iue process of law within the meaning Of the
Company. II Howard 2T2.l 10 b. the king power
Of the government that comes In tho right to seize
aad take property Tor the payment of taxes, that 10
4 exercised, which u potential right All property
VI the citkea s subject 70 tue imposition Of taxes
| for the support OF the government ana the payment
~ ~ debt-. The on, security that tho citizen has
y under the safeguards that are thrown around the
sapeci hy iha provisions of the constitution Itself
one oi when y that they must DC uniform, and they
cannot be imposed without vote ~ the representa-
ye. q ,ie peepe N pursuance Of law. Tits b the
| tremendous power which the government has over
| our property IN the right 70 tax.
wrEs ,DuNr suorID act
Tam Inclined 10 i0uk that II Congress- should i'm.
pose an unreasonable condition as prerequisite 10
tne pursuit Of lawful business. Il might Re the duty
~ the courts 20 interfere with the execution of such
Jaw ~ "" onicefs 81 thc government; hui where
party comes into court ami asks that the ,cerv
" the government should be prohibited from carry
in1 out various proviions ~ law which concern the
details oi business he proposes tD undertake, I
think that no cannot ASK O the court s interference
by injunction, for fear that In the execution or some
VI those provisions fght guaranteed hin BY the
constitution may le violated fhore must be acme
act bone N The hr-f place. or Threatened lie must
be pursuing his lawful business and that business be
inl.riercd Win of the prosecution of It threatened
With some act of the government. before the couri
| can interfere.
rIIE DISTINCTION REFUSED
I do not say--t n unnecessary that should saw
10 this casethat every single provision In these va
rous laws ~ ~ strlct accordance with the constitu
ton; but ! think that before the plaintiff can cal
upon the Court 10 enjon the officers Of tho govern
| nent IN relation 10 all or any of these various pro
| visions which II - claimed are Unconstitutional
he nurt nrst establish that he Ia pursuing his busl
ness and tnat some right In the pursuit of that bust
neas hak been InterIered with. Ia THIS case. Wit