CHAPTER IV.

THE POWERS OF CONGRESS.

National Powers. — In any sovereign state, the law-making department is the repository of most power, and it is also the most immediate representative of the sovereignty. Not that the others are subordinate within their respective spheres, but the exercise of governmental authority begins with the making of laws, and the other departments execute and administer what the law-making department enacts. For this reason the Constitution, in enumerating the powers which shall be exercised by authority of the general government, confers them in terms upon Congress. But this in legal effect is conferring them upon the United States, and by implication a corresponding executive and judicial power is also given, though to a large extent the exercise of these powers respectively is left to be provided for in the discretion of Congress.

SECTION I.Taxes, LoanS, AND DEBTS.

The Power. -In the specific enumeration of national powers, it is first declared that "The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States." 1 Thus a power is conferred which is essential to the maintenance of independent government,

1 Const., Art. I. § 8, cl. 1.

and the want of which was one of the principal causes of the failure of the Confederacy. The purposes for which the power may be exercised are also specified, but in such general terms that they comprehend all the needs of government. The requirement of uniformity in the levy of duties, imposts, and excises is an important limitation to a power which otherwise might have been exercised partially and oppressively.

Definition. The word "taxes," in its most enlarged sense, embraces all the regular impositions made by government upon the person, property, privileges, occupations, and enjoyments of the people for the purpose of raising public revenue.1 As duties, imposts, and excises are laid or imposed for this purpose, they are in a strict sense taxes, and no doubt might have been levied by the government under that designation, without being here specifically mentioned. But as the term taxes is sometimes used in contradistinction to these levies, it conduced to certainty to name them separately. It was also a convenience in view of the special rule which was prescribed for their levy. The terms duties and imposts are nearly synonymous, and are usually applied to the levies made by government on the importation or exportation of commodities, while the term excises is applied to the taxes laid upon the manufacture, sale, or consumption of commodities within the country, and upon licenses to pursue certain occupations.2

Taxes are distinguished from arbitrary levies in that they are laid according to some rule which apportions the burden between the subjects thereof. An exaction which is made without regard to any rule of apportionment is

1 Montesq., Sp. of the L., b. 13, c. 1; Perry v. Washburn, 20 Cal. 318, 350; Hilbish v. Catherman, 64 Penn. St. 154, 159; Loan Association v. Topeka, 20 Wall. 655, 664; Opinion of Judges, 58 Maine, 590. 2 Cooley on Taxation, 3.

therefore not a tax, and is not within the constitutional authority of the, government.1

The power to tax is an incident of sovereignty, and is coextensive with the subjects to which the sovereignty extends. It is unlimited in its range, acknowledging in its very nature no limits, so that security against its abuse is to be found only in the responsibility of the legislature which imposes the tax to the constituency who are to pay it. A people, however, in establishing their constitution, and delegating to their representatives this power, may impose at discretion limits to its exercise; and many effective limitations have been imposed in the constitutions of the States.

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The Power Discretionary. — As respects the kind of tax that shall be laid, or the subjects upon which it shall be imposed, every government will regulate its action according to its own view of what will best accomplish the end, and best subserve the general interest. Therefore, taxes may be levied upon either land or personalty to the exclusion of the other, or upon occupations in preference to either or both, or they may be collected in the form of duties on imports or excises on domestic productions. The United States for the most part has collected its revenues from duties on imports, but at exceptional periods has levied taxes on land, occupations, manufactures, incomes, deeds and other contracts, and many other subjects. The basis of apportionment in the case of imports and excises has sometimes been value, sometimes weight, quantity, or quality, and sometimes other standards, while upon deeds

1 Sutton's Heirs v. Louisville, 5 Dana, (Ky.) 28-31; Grim v. School District, 57 Penn. St. 433.

2 Veazie Bank v. Fenno, 8 Wall. 533, 548; McCulloch v. Maryland, 4 Wheat. 316, 428; Howell v. State, 3 Gill, (Md.) 14; People v. Brooklyn, 4 N. Y. 419; Pullen v. Commissioners, 66 N. C. 361; Taylor v. Palmer, 31 Cal. 240; State v. Newark, 26 N. J. 519; Williams v. Cammack, 27 Miss. 209, 219; Parham v. Justices, 9 Geo. 341, 352.

and contracts the apportionment has been according to number or importance, and the tax has been collected by the sale of stamps. By the Constitution the United States is precluded from laying any tax or duty on articles exported from any State.1 The requirement that an article intended for exportation shall be stamped, to prevent fraud and secure the carrying out of the declared intent, is not laying a duty, even though a small charge is made for the stamp.2 It would be otherwise if the stamp were required for the purpose of revenue.3

The Purposes. Constitutionally a tax can have no other basis than the raising of a revenue for public purposes, and whatever governmental exaction has not this basis is tyrannical and unlawful. A tax on imports, therefore, the purpose of which is, not to raise a revenue, but to discourage and indirectly prohibit some particular import for the benefit of some home manufacture, may well be questioned as being merely colorable, and therefore not warranted by constitutional principles. But if any income is derived from the levy, the fact that incidental protection is given to home industry can be no objection to it, for all taxes must be laid with some regard to their effect upon the prosperity of the people and the welfare of the country, and their validity cannot be determined by the money returns. This rule has been applied when the levy produced no returns whatever; it being held not competent to assail the motives of Congress by showing that the levy was made, not for the purpose of revenue, but to annihilate the subject of the levy by imposing a burden which it could not bear. Practically, therefore, a law purporting

1 Const., Art. I. § 9, cl. 5. 2 Pace v. Burgess, 92 U. S. Rep. 372. 3 Almy v. California, 24 How. 169.

4 Veazie Bank v. Fenno, 8 Wall. 533. Mr. Justice Story, in his Commentaries on the Constitution, asserts broadly that" the absolute power to levy taxes includes the power in every form in which it

to levy taxes, and not being on its face subject to objection, is unassailable, whatever may have been the real purpose. And perhaps even prohibitory duties may be defended as a regulation of commercial intercourse.

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Levies for Private Purposes. - Where, however, a tax is avowedly laid for a private purpose, it is illegal and void. The following are illustrations of taxes for private purposes. A tax levied to aid private parties or corporations to establish themselves in business as manufacturers; tax the proceeds of which are to be loaned out to individuals who have suffered from a great fire; a tax to supply with provisions and seed such farmers as have lost their crops; a tax to build a dam which at discretion is to be devoted to private purposes; a tax to refund moneys to individuals which they have paid to relieve themselves from an impending military draft; 5 and so on. In any one of these cases the public may be incidentally benefited, but the incidental benefit is only such as the public might receive from the industry and enterprise of individuals in their own affairs, and will not support exactions under the name of taxation.

But, primarily, the determination what is a public purpose belongs to the legislature, and its action is subject to no review or restraint so long as it is not manifestly color

may be used, and for every purpose to which the legislature may choose to apply it. It therefore includes the power to levy protective duties, though the duties may in effect be

on Const., § 965.

Story

1 Loan Association v. Topeka, 20 Wall. 655, 663; Allen v. Jay,

60 Me. 124.

2 Lowell v. Boston, 111 Mass. 454.

8 State v. Osawkee, 14 Kans. 418.

4 Attorney-General v. Eau Claire, 37 Wis. 400.

5 Tyson v. School Directors, 51 Penn. St. 9; Crowell v. Hopkinton, 45 N. H. 9; Usher v. Colchester, 33 Conn. 567; Freeland v. Hastings, 10 Allen, (Mass.) 570; Miller v. Grandy, 13 Mich. 540.