The age-herald., 1901-05-28

the power of Congress and that body was not moreover, as to such lmpost con- trolled by the clause requiring that im- posts should be uniform throughout the United States, in other words, the pro- vision of the constitution just referred to was not applicable to Congress in legis- lating for Porto Rico"
 Justice Gray announced his concurrence in the majoritys conclusion in the DoWnes case, remarking:
 'The civil government of the United States cannot extend immediately and of its own force over territory acquired by war. There must of necessity by trans ition period. If Congress is not ready to construct a complete government of the conquered territory it may establish temporary government which Is not sub jeot to all the restrictions of the consti- tutlon."
 The chief dissenting opinion in the DoWnes case was announced by Chief Justice Fuller. Justices Harlan, Brewer and Peckham joining in the dissent. He said the majority though widely differing in their reasoning seemed to concur in the view that Porto Rico belongs to the United States, but nevertheless Is not part of the United States subject to the provisions of the constitution in respect of taxes. It was said that Congress in attempting to levy these duties, was not 
 clause of article 8, or restricted by it, because in dealing with the territories 1 Congress exercises unlimited powers of 1 government and moreover, that these du- ties are merely local taxes. This court in 1920, when Marshall was Chief Justice, took a different view of the power of l Congress in the matter of laying and col lecting taxes, duties, imposts and exclses in the territories, and it's ruling has never been oyerruled.
 "It is said In one of the opinions of the majority that the Chief Justice made l certain observations which have occa- stoned some embarrassment in other 1 cases
 1T agree that the opinion must be em- barrassng in this case, for 1t is neces- sary to overrule that decision in order to reach the result herein announced"
 Chief Justice Marshall. In that case, considering the provision requiring that ''all duties, imposts and excises shall be | uniform throughout the United States,'' 1 said:
 Does this term (the United States) designate the whole or any portion of the American empire? Certainly this ques- | ton can admit of but one answer It is the name given to our great Republic, which is composed of states and terri tories. The District of Columbia or the | territory west of the Missouri is not less within the United States han Maryland or Pennsylvania; and 1t Is mot less neces- l sary on the principles of our constitution that uniformity In the imposition of im- posts. duties and excises should be ob- served in the one than in the other. Since, then, the power to lay and collect taxes, l which includes direct taxes, Is obviously co-extensive with the power to lay and collect duties. imposts and excises, and since the latter extends throughout the United States 1t follows that the power to impose direct taxes also extends throughout the United States"
 The chief justice held the territories. as we'll as the district, to be a. part of the United States for the purpose of national | taxation.
 The proposition that Chief Justice Mar shall has erred in his opinion and that the | rule of uniformity was a limitation to the | state as such, was declared to be wholly unwarranted, and quite a number of cases 1 were cited in which the Supreme Court and Congress, notably by the thirteenth and fifteenth amendments to the consti- tution, had sustained the view that the United States meant territories as well as states.
 Chief Justice Fuller advanced the prop osition enunciated In Marbury vs. Madi- son, that the constitution was written in order to define and limit and keep within its restricted boundaries all persons and
 
 meant to leave no room for the plan and action of purely personal and arbitrary power.
 Of the contention that by international law Porto Rico came to us subject to such legislation as Congress might enact Chief Justice Fuller said:
 "The new master was, in this instance, the United States, a constitutional gov ernment with limited powers and the terms which the constitution itself i'm | posed or which might be imposed in ac- cordance with the constitution, wtre the terms on which the new master took pos | session."
 the Chief Justice said ''It certainly can not be admitted the power of Congress to lay and collect taxes and duties can | be curtailed by an arrangement made with foreign nation by the President and two-thirds of a quorum of the Sen | ate"
 Chief Justice Fuller absolutely rejected the contention that the rule of uniformity was not applicable to Porto Rico because | it had not been incorporated into and be- come an integral part of the United States, saying the logical result is that Congress may prohibit commerce alto | gether between the states and territor- les and may prescribe one rule of taxation In one territory and a different rule in another The Chief Justice said:
 
 "The theory assumed that the consti- tution created a government empowered to acquire countries throughout the world to be governed by different rules than those obtaining in the original states and territories and substitutes for the present system of republican government, a sys- tenn of domination over distant provinces, Is tn exercise of unrestricted power.
 "In our judgment so much of the Por- to Rican act as authorized the imposi- tion of these duties is invalid and plain tiffs were entitled to recover"
 Justice Harlan DIssents.
 Justice Harlan then announced his con- currence of the dissenting opinions just delivered by the Chief Justice. He re- | garded the Foraker act as unconstitution- al In It's revenue provisions, and believed that Porto Rico, after the ratification of 1 SRyPo5 IaS fOyB Nal