66 In New York ex rel. Metropolitan Street Railway Co. v. Tax Commissioners it was held that a tax levied specially upon the franchise of the company as a piece of property of value was not a double tax, because a lump sum had been paid at the time the franchise was granted, and an annual payment of a fixed amount or fixed percentage of earnings, such payments not having been specifically declared to be in lieu of taxes. The fact that for many years the State had not attempted to levy such a special franchise tax was held not to be an estoppel upon the State. § 546. Tax Exemptions and the Obligation of Contracts. This subject has been considered in the preceding chapter. § 547. Double Taxation. We have seen that the right of a State to tax depends upon its jurisdiction over the object taxed, and that this jurisdiction is obtained by either actual or constructive presence of the object within the State's territorial limits. This constructive presence applies to personal property and depends upon the principle mobilia sequuntur personam. As to personal property it is thus possible that it may actually be in one State and be there taxed, and constructively in another State and there also taxed. The fact that one State has exercised its jurisdiction with reference to a matter, whether of taxation or otherwise, clearly can impose no obligation upon another State not to exercise such jurisdiction as it may have. This the Supreme Court of the United States has repeatedly recognized. In Coe v. Errol the court say: "If the owner of personal property resides within a State which taxes him for that property as part of his general estate attached to his person, this action of the latter State does not in the least corporation, and all trades and avocations by which the citizens acquire a livelihood, may be taxed by a state for the support of a state government.' State Freight Tax Case (Philadelphia & R. R. Co. v. Pennsylvania), 15 Wall. 232; 21 L. ed. 146; State Tax on Gross Receipts (Philadelphia & R. R. Co. v. Pennsylvania), 15 Wall. 284; 21 L. ed. 164." 66 199 U. S. 1; 25 Sup. Ct. Rep. 705; 50 L. ed. 65. affect the right of the State in which the property is situated to tax it also." And in Blackstone v. Millers the court say: "No doubt this power on the part of two States to tax on different and more or less inconsistent principles leads to some hardship. It may be regretted, also, that one and the same State should be seen taxing on the one hand according to the fact of power, and on the other, at the same time, according to the fiction that, in successions after death, mobilia sequuntur personam and domicile governs the whole. But these inconsistencies infringe no rule of constitutional law." 69 The double taxation of a piece of property by the same State is, however, forbidden not only by the several constitutions of most of the States, but by the Fourteenth Amendment. 68 188 U. S. 189; 23 Sup. Ct. Rep. 277; 47 L. ed. 439. 69 Citing Coe v. Errol, 116 U. S. 517; 6 Sup. Ct. Rep. 475; 29 L. ed. 715; Knowlton v. Moore, 178 U. S. 41; 20 Sup. Ct. Rep. 747; 44 L. ed. 969. See also Kidd v. Alabama, 188 U. S. 730; 23 Sup. Ct. Rep. 401; 47 L. ed. 669. CHAPTER L. THE FEDERAL JUDICIARY. ITS ORGANIZATION. 548. Constitutional Provisions. The Constitution provides that there shall be a Supreme Court of the United States, and such inferior courts as Congress may from time to time ordain and establish. It is also provided that "the judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office;" and that the judges of the Supreme Court shall be nominated by the President and appointed by and with the advice and consent of the Senate. All the other federal justices are similarly appointed, but it is within the power of Congress to vest their appointment "in the President alone, in the courts of law, or in the heads of departments.' 1 With the exception then of the tenure of office,3 and the constitutional provision regarding appointment of the justices of the Supreme Court, the form of organization, the number of justices, etc., the federal courts, including the Supreme Court, are wholly within the control of Congress. The practice and procedure to be followed in these courts is also within the control of Congress except as to certain mandatory provisions with reference to jury trial, second jeopardy, speedy and public trial, etc., contained principally in the first eight 1 Art. III, Sec. I. 2 Art. II, Sec. II, CI. 2. 3 The exception does not apply to the territorial courts or the Courts of Private Land Claims, and such quasi-judicial bodies as the Interstate Commerce Commission as these are not considered, properly speaking, as parts of the federal judiciary but rather as agents of Congress. Clinton v. Englebrecht, 13 Wall. 434; 20 L. ed. 659. See section 161. The Court of Claims, however, and the courts of the District of Columbia are federal and not congressional courts. Amendments to the Constitution. These constitutional rights, immunities, and privileges guaranteed to the individual are considered elsewhere. § 549. Inferior Federal Courts. By the original Judiciary Act of 1789 provision was made for inferior federal courts to be known as District and Circuit Courts. The territory of the Union was divided into districts composed of a State or portions of a State, for each of which a district and a Circuit Court was provided; and these districts were grouped into circuits to each of which a Justice of the Supreme Court was assigned as Circuit Judge. With the execption of minor changes, as for example, the creation of new districts and circuits and making provision for Circuit Judges in addition to the Justices of the Supreme Court, the system thus established remained undisturbed for over one hundred years. In 1891, Congress created a new class of federal tribunals known as the Circuit Courts of Appeals, one of these being assigned to each of the existing nine circuits. As at present constituted, therefore, the federal judicial machinery consists of a Supreme Court, Circuit Courts of Appeal, Circuit Courts, and District Courts. In addition there are a Court of Claims, and the Judiciary of the District of Columbia. § 550. The Supreme Court: Its Organization. The Supreme Court is at present composed of nine justices -eight associate justices and one chief justice. It sits at Washington, D. C., and holds annual terms beginning in October and lasting till the end of May.* 4 From 1789 to 1807 there were six Supreme Court Justices; from 1807 to 1837 seven; from 1837 to 1863 nine; from 1863 to 1866 ten; from 1866 to 1869 seven; since 1869 nine, the present number. For many years two terms annually were held. A chief justice is only impliedly provided for in the Constitution in that clause which declares that the chief justice of the United States shall preside in cases of impeachment of the President (Art. I, Sec. III, Cl. 6). According to Art. I, Sec. VI, Cl. 2, no member of either house of Congress may, at the same time be a federal judge, but no constitutional Each justice of the Supreme Court is assigned to a circuit in which it is required by law that he shall hold court in each district at least once in two years. His services may also be required in the Circuit Court of Appeal of his circuit. In fact, however, since the erection of the Circuit Courts of Appeal the Supreme Court justices sit but seldom in the inferior courts. § 551. Circuit Courts of Appeal: Organization. The Circuit Courts of Appeal created by the act of 1891 are each held by three justices. These may be the Supreme Court justice of the circuit, the circuit judges, or one or more of the district judges. Two judges constitute a quorum. § 552. Circuit Courts: Organization. There are nine judicial circuits, each circuit being subdivided into districts. In some cases two circuit judges, and in other cases three or more, being appointed for each circuit. One justice of the Supreme Court is assigned to each circuit, and as thus assigned is termed circuit justice. Circuit Courts may be held by the circuit justice, or by a circuit judge of the circuit, or by the district judge of the district, each sitting alone, or by any two of these judges sitting together.5 § 533. District Courts: Organization. There are now about eighty District Courts, nine of which are in the territories. In a few instances two districts are assigned to one judge. For each district a United States district attorney is appointed to represent the interests of the Federal Government. Marshals and other court officers are also provided. District judges must reside within their respective districts. They may, when assigned by the circuit judge or justice or the Chief Justice of the Supreme Court, hold the District or Circuit Court for any disability to hold any federal office rests upon the judge. Thus Jay while Chief Justice was for a time Secretary of State, and also minister to England; Ellsworth while associate justice was minister to France; and Marshall while Chief Justice was for a time Secretary of State. 5 Rev. Stat., § 609. |