New-York tribune., 1901-05-28
THE DISSENTING OPINION.
CHIEF JUSTICE FULLER AND JUSTICES
HARLAN. BREWER AND PECKHAM
CONSIDER THE FORAKER LAW
UNCONSTITUTIONAL

Washington, May 2T-The CHIEF dissenting opIn-
Ion in the Downes case was announced by Chief
Justice Fuller. Justices Harlan. Brewer and Peck
ham joining in the dissent He said the majority
though widely differing I'm their reasoning seemed
TO concur in the view that Porto Rico belongs to
the United States. hut nevertheless Is not n part
or the United States subject TO the provisions Of
the constitution IN respect ot taxes. The Foraker
act under which the duties were levied created
complete form OF government for Porto Rico, with
n special provision that the taxes levied IN the
United States on Porto Rican exports should be
held as special fund for Porto Ricos benefit II
was admitted that on It's face the part Of the net
with reference to duties did comply with the
rule OF uniformity prescribed by the constitution
The constitutional uniformity is geogra phical uni
formity. but" the opinion continued at was said
that Congress In attempting 10 levy these duties
was not exercising power derived from the first
clause OF Section S. restricted by it because In
dealing with the territories Congress exercises un-
limited powers of government. and. moreover that
these duties merely local taxes This court
In 1920 when Marshall Chief Justice and
Washington. William Johnson. Livingston Todd
Duvall and Story were his associates took differ
view Of the power Of Congress in the matter of
laying and collecting taxes. duties. mposts and ex-
cses in the territories. and it's ruling in I.ough-
borough agt Blake. Wheat. S7. has never been
overruled.
THINKS MARSHALL MUST BE OVERRULED.
1T is said in of the opinions Of the majority
that the Chief Justice made certain observations
which have occasioned some embarrassment in
other cases. l agree that the opinion OF the court
delivered by him must be embarrassing in this case,
for IL Is necessary to ovcrrule that decision In
order to reach the result herein announced"
Chief Justice Marshall in that case, in consider
ing the provision requiring that ''all duties i'm
posts and excises shall be uniform throughout the
United States" said
Does this term Uhe United States) designate tho
whole portion
Certainly this question can admit OF but one an
which is @ f of 10 and our grfn @
st1t Of 6t a6 or the & territory
Maryland or nsylvania and it is less neces-
uniformity the imposition Of imposs dulles tn9i and
exGlses should he observed in the one than in the
taxes, which includes direct taxes is obviously co
mposts and excises and since the latter amss
throughout the United States, it follows that the
out the United States, '''' 'ue i"
OF the suggestion that this statement was mere
obiter dcta Chief Justice Fuller said:
1t is wholly inadmissble to reject the process ~
tested the soundness Of his conclusion as merely rely,
tories, well the District to be part Of fbe
d states for the Of national
MEGulloGh Me- agt MARYLAND; wheaton 4OS:
to % the Gulf of Mexico from the Atlantic to 'fe the
armies be marched and supported 'Peiueu
THE CHIEF JUSTICES VIEW OF DIrT1Es
Continuing. he combated the contention that thos.
particular duties are local in their nature ana
said the levy Is clearly A regulation OF comn,aro
and made in the exercise of national popvers IT.
added:
In any point of view. the imposition of duties ~,
commerce operates 10 regulate commerce ana q,
not matter or local legislation and IL follows tbae
the levy or these duties In the exercise of The
national power to do So and subject to the rao,,
ment OF geographical uniformity.
Inc iact that the proceeds of these duties ,ro
devoted oy the act TO the the territory doae
not make national taxes local. Nobody disn1,tes
lle power OF Congress to lay and collect duties
seogrdpnlcaly uniform, and apply the proceeds bv
a proper appropriation to the relief of 10y -!
ticuar territory, but the destination ,.f tba n rl
ceeds would not change the of the nower -
iay ana collect And that suggestion fcertainl,, 49,
NOT strengthened when based on the diyergio9 81
dutes collected from all parts OF the United States
10 territorial treasury before reaching the Treas
ury or the United States. Clause OF Section o M
from the treasury, but in consequence of appronra
tons made by law" and the proposition thai this
may be rendered inapplicable if the money is nc,
permitted to be paid in be susceptiha -
oeing drawn out is somewhat startling. -
erred in his opinion, and that the rule of unforny
was limitation TO the States as such was aa
clared to be wholly unwarranted and quite a nun,
Der OF cases were cited in which the Supreme Cour,
and Congress. notably by the Thirteenth ana E,,
teenth amendments TO the constitution. had a,,z.