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power exists. A tax on stock of the United States held by an individual citizen of a State is a tax upon the power to borrow money on the credit of the United States and can not be levied by a State. Weston v. City Council, 2 Pet., 449.
(2) In issuing the bonds of the Federal government they were “exempt from taxation by or under State authority.” (Act June 3, 1864.) But the act providing National currency and for National banks, provided that the shares of stock in such bank might be taxed by the States (See R. S., U. S., Sec. 5219) under certain limitations. The statute of New York (Mar. 9, 1865) attempted to tax the shares of National banks, where it provided no taxation on the shares of stock in State banks. This was held void as it taxed the shares of stock in National banks differently from what other bank shares were taxed. This was repugnant to the 41st section of the National banking law which provided that the tax imposed under the laws of any State upon such shares "shall not exceed the rate imposed upon the shares in any of the banks organized under the authority of the State, where such association is located.” Van Allen v. Assessors, 3 Wall., 573.
(3) The State of New York then tried to adapt its laws to harmonize with the Federal law so as to tax National bank shares "but not at greater rate than is assessed upon other moneyed capital in the hands of individuals in this State.” The majority opinion of the Supreme Court held this law to be valid. People v. Commissioners, 4 Wall., 244.
The tax on the shares of the stockholders is not the same thing as the tax upon the capital of a bank. Where a State law taxes the shares in a National bank but does not tax the shares but the capital of State banks the law is void. Affirming Van Allen v. Assessors, 3 Wall., 573; Bradley v. People, 4 Wall., 459.
(4) Certificates of indebtedness issued by the government for supplies, can not be taxed by States; such taxation is an interference with the power to borrow money, etc. Banks v. Mayor, 7 Wall., 16.
(5) United States treasury notes are obligations of the government and can not be taxed by the States. Banks v. Supervisors, 7 Wall., 27.
Power of Congress to make the Treasury notes legal tender.-It was held in Hepburn v. Griswold, 8 Wall., 603 (decided in 1869), that the legal tender acts passed during the war, were unconstitutional. This opinion was given by Chief Justice Chase, the man who as Secretary of the Treasury had brought forward the legal tender scheme. But this decision threatened such dire disaster to the business interests of the country that, after the personnel of the court had been changed by death and new appointments, the question was raised again and solemnly argued in 1870; and it was held in Knox v. Lee (Legal Tender Cases), 12 Wall., 467, that the legal tender acts were constitutional; and applied
to contracts made before their passage as well as after. In this opinion the Court lay much stress on its being a "war power," as if justified only by the dire necessities of the nation's struggle for its life. But later in Juilliard v. Greenman, 110 U. S., 421, it was held that this power to make United States Legal Tender Notes legal tender for private debts could be constitutionally exercised as well in time of peace as of war. These decisions have been much criticised by many of the ablest lawyers; but it is not likely that the court will ever oscillate back to the other and earlier view.
Tax on telegraph messages.—No State can impose a tax upon telegraph messages sent into or out of the State, or upon the receipts therefrom, nor on a gross amount which includes such receipts, as this is a regulation of commerce. Western Union Telegraph Company v. Alabama, 132 U. S., 472.
REGULATION OF COMMERCE.
The Congress shall have power, *
"To regulate commerce with foreign nations, and among the several States."
“This power is vital to the prosperity of the Union; and without it the government would scarcely deserve the name of a National government. It would stand as a mere shadow of sovereignty, to mock our hopes and involve us in a common ruin.” Story on Const., 5 Ed., sec. 1057.
What is meant by commerce?—This term means traffic; but it is something more; it is intercourse. It comprehends navigation, and the laws regulating navigation are founded on the power to regulate commerce. Gibbons v. Ogden, 9 Wheat., 189.
The great leading case on this subject is Gibbons v. Ogden, 9 Wheat., 189. The facts out of which the case arose are these: The legislature of New York granted to Livingston and Fulton the exclusive navigation of all of the waters within the jurisdiction of that State, with boats propelled by fire or steam, for a term of years, and authorized the Chancellor to restrain by injunction any person from navigating those waters with such boats. Livingston and Fulton assigned to Ogden their right to navigate the waters between places in New Jersey and the city of New York. Gibbons had two steamers and ran on the lines granted to Ogden by Livingston and Fulton. The Chancellor enjoined Gibbons from this violation of Ogden's exclusive right. From the decision affirming the Chancellor's decision, by the Court of Errors of New York (17 Johns., 486) Gibbons carried the case by writ of error to the Supreme Court of the United States. Here was a clear question raised,—the power to regulate commerce by the State as against the power to regulate commerce by the Congress. The Court held: (1) That the power to regulate commerce was exclusive of any concurrent power in the State, when Congress exercised its power, however, it might be as to the State regulations in the absence of actual exercise of the power by Congress. (2) That such power of Congress does not stop at the external boundary of a State. (3) That the law of New York granting this exclusive right was inoperative as against the laws of the United States; and that: the New York Chancellor could not enjoin Gibbons from plying his vessels.
Commerce includes an intercourse of persons as well as merchandise. Passenger Cases, 7 How., 283.
The power to regulate commerce with foreign nations.—What is meant by "regulate”? The power to regulate is the power to prescribe the rule by which commerce is governed. Gibbons v. Ogden, 9 Wheat., 196. It is to prescribe the conditions on which it shall be conducted. Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 196. It includes navigation, and the power to pass navigation laws (Gibbons v. Ogden, 9 Wheat., 190, 191) both on the ocean and within the limits of every State, so far as it is commerce among the States or with the Indian tribes (Id., 1), and control of all navigable waters in a State which are accessible from any other State. Gilman v. Philadelphia, 3 Wall., 713. Cooley v. Board of Wardens, 12 How., 292, 315,