Evening star., 1936-01-07

ly speaking, q tax or duty within the
meaning of the Constitution. The
money thus raised. though paid into
the Treasury, is appropriated in ad-
vance to the uses of the statute, and
does not go to the general support OF
| the Government"
While there the exaction was Sus-
tanned as an appropriate element in
a plan within the power Of Congress
ito regulate commerce with foreign
nations" no question was made Of the
standing of the shipowner to raise the
question of the validity Of the scheme
and consequently Of the exaction
which was an incident Of 1t.
It is inaccurate and misleading to
speak of the exaction from professors
| prescribed by the challenged act as
a tax, or to say that as tax it is
subject to no infirmity. A tax. in the
general understanding of the term.
and as used in the Constitution. sig
nifies an exaction for the support of
the Government. The word has
never been thought to connote the
expropriation OF money from one
group for the benefit of another. We
may concede that the latter sort of
imposition is constitutional when i'm
posed to effectuate regulation Of
matter in which both groups are in
| terested and in respect of which there
is a power of legislative regulation.
But manifestly no justification for it
can be found unless as an integral
part of such regulation. The exaction
cannot be wrested out of its setting.
denominated an excise for raising rev.
enue and legalized by ignoring its
purpose as a mere instrumentality for
bringing about a desired end. To do
this would be to shut our eyes to what
all others than We can see and un-
derstand. Child Labor Tax Case, 259
U. S. 20, 81.
Act One for Regulating
Farm Production.
We conclude that the act is one
regulating agricultural production;
that the tax is a mere incident of
such regulation and that the respond
ents have standing to challenge the
legality of the exaction.
1t does not follow that as the act
is not an exertion Of the taxing power
and the exaction not true tax, the
statute is void or the eXaction un-
collectible. For. to paraphrase what
was said in the head money cases
(supra), if this is an expedient reg
ulation by Congress, of subject with
in one of its granted power, land the
end to be attained Is one falling
within that power. the act is not
void, because, within loose and more
extended sense than was used in the
Constitution" the exaction Is called
a tax.
Second. The Government asserts
that even if the respondents may
question the propriety of the appro-
priation embodied in the statute their
attack must fail because article /,
section 8, of the Constitution author
ICES the contemplated expenditure of
the funds raised by the tax. This
contention presents the great and the
controlling question in the case. We
approach its decision with a sense of
our grave responsibility to render
judgment in accordance with the
principles established for the govern
ance of all three branches of the
Government.
There should be no misunderstand-
ing as to the function of this court
in such a case. 1t is sometimes said
that the court assumes a power to
overrule or control the action Of the
peoples representatives. This is a
misconception. The Constitution is
the supreme law Of the land ordained
and established by the people. All
| legislation must conform to the prin-
ciples it lays down. When an act Of
Congress is appropriately challenged
| in the courts as not conforming to
the constitutional mandate the judi
cial branch Of the Government has
only one duty-to lay the article of
the Constitution which Is invoked be-
side the statute which is challenged
and to decide whether the latter
squares with the former. All the
court does, or can do, is to announce
its considered judgment upon the
question. The only power it has, if
such it may be called, is the power
of Judgment. This court neither ap-
proves nor condemns any legislative
policy. It's delicate and difficult Office
is to ascertain and declare whether
the legislation is in accordance with,
or in contravention of, the provisions
of the Constitution; and, having done
that, its duty ends.
American Union Is One
OF Delegated Powers.
The question is not what power the
Federal Government ought to have,
but what powers in fact have been
given by the people. It hardly seems
necessary to reiterate that ours is a
dual form of Government; that in
every State there are two govern
ments-the State and the United
| States. Each State has all govern
mental powers save such as the peo-
pie, by their Constitution, have con-
ferred upon the United States, de-
MED to the States, or reserved to
themselves The Federal Union is a
government of delegated powers. It
has only such as are expressly con-
ferred upon it and such as are rea-
sonably to be implied from those
granted. In this respect we differ
radically from nations where all legis-
lative power, with our restriction or
limitation, is vested in Parliament
or other legislative body subject to
no restrictions except the. discretion
of it's members.
Article l, Section 8, Of the Con-
stitution vests sundry powers in the
Congress. But two of its clauses
have any bearing upon the validity
| of the statute under review.
The third clause endows the Con-
gress with power ito regulate COM
merce among the several States.'i
Despite q reference in its first section
to burden upon, and an obstruction
Of the normal currents of commerce,
the act under review does not purport