The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-12-14


ports only are, by another provision, excluded rom
Its application. There are, indeed, certain Virtual
limitations arising from principles OF the consti-
tuition itself. Ii would undoubtedly DE an abuse ol
the power II so exercised as 10 impair tne separa,e
existence and Independent self-government county
OF Lane vs. state OF oregon Wall 73l oil the state,
or exercised for ends inconsistent with the limited
grants OF power IN the constitution.
And there are directions as the mode OF exer-
csing the power II Congress sees Mt To impose
capa'ion or other direct tax i must be lalu IN pro-
portion 10 the census. II Congress determines TO
impose duties, imp0sts and excuses they must De
uniform throughout the United States. These
Tney are simply rules prescribing the mode in
which II shall be exercised by tnems IL still ca
tends to every object OF taxation except EXPORTS,
and may be applied TO every object OF taxation 70
which 1t extends In snch measure as Congress may
determine The comprehensiveness OF the power
least absence OF any attempt by members Of the
Convention TO define even In the debate, the terms
OF the grant, The WORDS used certainly described
the whole power, and II was the Intention OF the
Convention that the whole power should DO con-
ferred. The definition Of particular words there
fore, became unlmportant 1t may be SAID, indeed,
that this observation however just in its application
70 the general grant Of power cannot be applied 70
the rules by which different descriptions OF taxes
land and collected by the rule OF apportlon,,
ment. Duties, imposts ana excuses must be lald
meaning OF the first rule u very clear, but
there has always been diversity OF opinion as 10
the subjects 70 which Is to applied the sense ssr,s
IN every act posing direct taxes In each OF these
acts gross sum has been LEVIED upon the United
States and the total amount has been apportioned
to the several States according to their respective
numbers OF inhabitants ascertaiued Dy the 1885,
vision is mace for the Imposition of the tax upon the
subjects specified IN the acts liking It's total sum.
In 179s, when the first direct tax was imposed, the
total amount was fixed at $4,000, 900 authorities
clted. In 1918 the amount OF the second direct tax
was fixed at 900. In 1915 the third at 600 000
and it was made an annual tax. In 1916 the provi-
sion making the animal reOealed by the
peal OF the hrst section of the act OF 1915 and the
total amount was fixed for that year At So 600 0O0
No other direct tax was imposed until 1861, when q
direct tax OF 500 600 900 was laid and made annual
but the provision making 1t annual was suspended,
and no tax except that first made was ever
apportioned. In each instance the total sum
was apportioned among the states by the constltu-
tona rule and was assessed at prescribed rates on
the subjects OF the tax. The subjects in 1875, lS13
1915 and 1916 were lands, improvements, dwelling
houses and slaves. and in 1851, land improvements
and dwelling houses only. Under the act OF 179s
slaves were assessed at fty cents each; under the
other acts according to valuation by assessors.
THIS review shows that personal property contracts,
occupations and the like have never been regarded
by Congress as proper subjects OF direct TAX. 1t has
been supposed that slaves must be regarded an ex-
rather apparent than real AS persons slaves were
proper subjects OF capttatl0n tax, which Is de.
scribed in the constitution as direct tax; IS pro-
perty they were by the laws OF some II not most OF
nelrs. Under the first view they would be
tax; under the latter they would be subject
10 the tax OF the other years as realty. That the
latter view WAS taken by the trainers of the acts
alter 1908 becomes highly probable, when 1t is con-
sidered that III the States where the slaves were
neld much OF the value which would otherwise at
tach to land passed into the slaves. IT. indeed, the
land only had been valued without the slaves, the
land would have been subject to much heavier pro-
porti0nal imposition in those States than In the
States where there were no slaves; for the proper
ton OF tax imposed on each State was determined
by population without reference to the SUBJECTS
which 1t was to be assessed. The fact then, that
slaves were valued under the acts referred to. far
from showing as some have supposed, that Congress
regarded personal property as Q proper object OF
direct taxation under the constitution shows only
that Congress- after 1898, regarded slaves for the
purpose OF taxation as realty. IL may be rightly
ton OF the constitution by Congress direct taxes
have been limited TO taxes on land and taxes on
polls or capltatlon taxes And this construction is
entitled to great consideration, especially in the
absence OF anything adverse to it in the discussions
OF the convention which framed and Of the conyen.
appear In those discussions on the contrary, sup
ports the construction Mr.. Madison SAYS Mr.. King
asked what was the precise meaning Of direct taxa
ton, and no one answered. ON another day, when
saxation and both to the white and three
MIR. Ellsworth said:-'ln case Of .
poll tax there would be diflcutv - and speaking
serve, The sum allotted TO q State may be levied
without difficulty, according TO the plan used the
state f0r rasns s own :. les All tins doaot;
the term direct tax; but II indicates agO under.
standing that direct taxes were such as may be
levied by capitatlon ana on lands ana ap-
purteDances or perhaps by valuation and assessment
Of personal property upon general lists for these
were subjects nom which the States at that time
usually received their supplies This view received
the sanction OF this court two years before the
OF the first law imposing direct taxes
Of the acts OF 1894, ina
posing duty on carriages came under con-
States. suit was brought by the United States
against David Hutton recover the penalty imposed
by the act for not returning any paying duty on
number OF carriages for the conveyance of persons
Kept by the defendant for his own use The law did
not provide for the apporuonment OF the taxes and
II 1t was direct tax the law was c0nfessedy I'M
warranted by the constitution. The only question
In the case, therefore, was whether or not the tax
was direct tax. me case was one OF great expec-
taon, ana general interest was lett In Its determi-
nation. II was argued IN support Of the law by Lee
Attorney General, and Hamilton, recently Secretary
OF the Treasury; III opposition TO the tax, by Camp
bell, Attorney Tor the Virginia district ana Inger-
SOIL Attorney General OF Pennsy wanna or the JUS
tees who filled this bench. Ellsworth, Patterson and
Wilson had been members. and conspicuous members
OF the constitutional convention ana each oil the three
had taken part IN the discussions relating direct
taxation. Ellsworth, the Chief Justice, sworn into
office that morning, not having heard tfie whole
argument, declined taking part In the decision.
Gushing, senior Associate Justice, having been pre-
vented by indispositon from attending 10 the argu-
ment also refraineu from expressing an opinion.
The other Judges delivered their opinions In success
sion, the youngest In commission delivering the first
and the oldest the last. They Gil held that the tax
on carriages was not direct tax within the mean
Ing Oh Ge COhbtitutiOn. JUSTICE chase Inclined
TO think that the direct taxes contemplated BY the
constitution are only two--a capltation, or poll tax
and tax on land. He doubted whether 4 tax BY
general assessment OF personal property be In
ciuded within the term direct tax. Paterson, who had
taken leading part In the Constitutional Convention
went more fully into the sense In which the words
giving the power Of taxation were used by that
body. In the course OF this examination he said -
Nv neither direct taxes In the sense OF the constiEu-
ton, comprehend any other tax than capItation
tax and tax on land Is questionable point. II Con-
gress for instance, should tax IN the aggregate,
mass things that generally pervade all the States In
the Union, thcn perhaps, the rule OF apportionment
would be the most proper, especially II assess
ment was 10 Intervene This appears from the prac-
tce OF some OF the states to have been considered
direct tax Whether 1t be 80 under the constitution
OF the United States Is matter Of some diffculty,
but as IL Is not before this court IL would be lmpro-
per to give any decisive opinion upon 1t. never
entertained doubt that the principal, win say
the only OBJECT that the trainers OF the constitution
contemplated as falling within the rule OF appor-
tonment, Awas captatlon tax and tax
on and.n iredeii, delivering his opinion at
upn n n nf fua,to