Evening star., 1935-07-28


the use Of the so-called tax as a
penalty? If a tax, it Is clearly an
excise. If it were an excise on a
commodity or other thing of value,
we might not be permitted, under
previous decisions of this court to
infer, solely from its heavy burden.
that the Act intends prohibition
instead of a tax. But this act is
more.
Its prohibitory and regulatory effect
and purpose are palpable All others
can see and understand this. How
can We properly shut our minds to it?"
Declaring it the duty of the court
to decline to recognize or enforce
laws of Congress dealing with subjects
not intrusted to Congress, but left by
the supreme law of the land to the
control of the States, the Chief JUS
tice said the court must perform
that duty, "even though it requires
us to refuse to give effect to legisl:.-
ton designed to promote the highest
good"
He added:
The good sought in unconstitu-
tional legislation is an insidious fea-
ture, because it leads citizens and
legislators of good purpose to promote
it without thought of the serious
breach it will make in the ark IT
our covenant, or the harm which
will come, from breaking down recog-
nized standards.
In the maintenance of local self
government, on the one hand, and
the national power on the other. our
country has been able to endure and
prosper for near century and a
half"
Out of proper respect to a CO.
ordinate branch of the Government
the Supreme Court has gone far to
sustain taxing acts as such, Chief
Justice Taft indicated, adding that
this had been done even though
there has been ground for suspecting
from the weight of the Tax it YVES
intended to destroy its subject" He
said:
But in the act before us the pre-
sumption of validity cannot prevail,
because the proof of the contrary is
found on the very face of its pro-
visions. Grant the validity of this
law and all that Congress would need
to do hereafter, in seeking to take
over to its control any one of the
great number of subjects of public
interest, jurisdiction of which the
States have never parted With and
which are reserved to them by the
tenth amendment, would be to enact
a detailed measure of complete regu-
lation of the subject and enforce it
by a so-called tax upon departures
from it. To give such magic to the
word tax would be to break down
all constitutional limitations of the
powers of Congress and completely
wipe out the sovereignty of the States" +"
Legislation Is Dropped.
This decision was so directly appn-
cable to the Capper legislation before
Congress that it was Immediately
dropped.
On February 16. 1924, Senator
Capper presented another bill Is.
25l4. 1t was similar to his previous
bill in matters of administration and
regulation, but provided a bounty"
plan for enforcing compliance. In
stead of 5 cents per 1000 feet tax
on compliers, and a $500 tax on nom
compliers it proposed to tax all oper-
ators $500, but to return bounty"
of $4.95 to compliers. The net re-
suit was the same, although the
method was different-non-c -compli-
ance was to be penalized.
The constitutionality Of this type
of legislation was also vigorously
questioned. The Capper forestry leg
islation was ultimately dropped, but
the effort to give the Federal Gov
through its taxing power,
authority to regulate a great industry
is revived in the Guffey-Snyder bill.
Rules and regulations are to be i'm
posed on the industry in the form of
a code All coal operators are to be
taxed Is per cent Of the value of the
coal at the mouth of the mine-but
all who comply with the code will re-
ceive a rebate, or drawback" as the
bill calls it, of SO per cent of the tax.
The Capper bill bounty" reappears
under the new name of drawback"
This chapter of experience is also
valuable as showing the difficulty of
legislation to meet future
conditions. The Capper bill was pro-
posed to prevent timber famine
which originally had been predicted
for 1928. Although this famine did
not materialize, the forest conserva-
tion group believed as late as April
%, 1922, that the situation was seri-
Gus. Secretary of Agriculture Wal
lace, as spokesman for this group,
wrote to Senator Norris, chairman of
the Senate Committee on Agriculture
and Forestry, April %, 1922, in sup
port of the Capper bill. In that let
ter he said:
'The United States is now con-
suming wood nearly four and one-half
times as fast as it is being grown. We
are steadily eating up what is left of
our forest capital. AS a result the
country now faces the definite pros
pect of a growing scarcity and in
creasing cost of everything made
from wood"
Timber's Market Restricted.
Today, instead of exhaustion of
their forests, timberland owners are
by lack of markets for their
products. Careful inventories indicate
that reproducing areas are more extern
sive and reproduction more rapid than
had been previously believed More
over, substitutes have cut greatly into
use of lumber. The emphasis in
forest conservation has shifted, and
today is upon the need for recre-
alton areas, stream control and pre-
vention of soil erosion rather than
fear of an immediate shortage of
forest products.
The Nations need for forest prod
ucts will continue to be large and new
uses are developing This demand
will necessitate conservation meas
ures: but the pressing need for in