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§ 231.: Taxation.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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The power of taxation may of course be exercised by both the Federal and the State governments. Neither could exercise the other powers vested in it, without the authority to provide by taxation the means of securing the execution of the laws. The constitution of the United States expressly declares that “the Congress shall have power to levy and collect taxes, duties, imposts and excises to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”2 There are only two express limitations upon the power of Congress to levy a tax. One is to the effect that “no tax or duty shall be laid on articles exported from any State.”3 But it has been held that this provision of the constitution is not violated by the regulation which required, as a precaution against fraud, that certain articles intended for export shall be stamped. This is not a tax. It is an ordinary police regulation.4
It is also provided that “no capitation or direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.”5 But the term direct taxes is used in the constitution in a peculiar sense and includes only capitation and land taxes.6
Congress is expressly authorized to impose a license tax upon all trades, manufactures and other occupations. But it is not in the exercise of the ordinary police power. The ordinary police regulation of trades and professions falls within the power of the States, and the United States cannot determine what trades are injurious, and may therefore be restrained by the imposition of a license. The license fee, which the United States government may exact as a condition precedent to the pursuit of any employment or the manufacture and sale of any product, is a tax, and does not operate directly as an ordinary police regulation. As a measure for enforcing the payment of the license tax, no doubt Congress may prohibit the prosecution of the trade, if the tax is not paid; and in order that illicit trade may be detected, Congress may provide the most stringent regulations for the inspection of the premises of those who are engaged in the trade in question, and require the goods to be stamped, and the like. But these regulations are only lawful as means devised for the collection of the tax, and not as a police measure, designed to restrain the prosecution of the trade. If Congress declares that its purpose, in exacting a license fee, was to lay a tax, or if there is no declared purpose, and the act of Congress falls fairly within the power of Congress to impose a license tax, the constitutionality of the act cannot be questioned on the ground that it is a police regulation, designed to restrict or suppress the objectionable trade or manufacture.
The general rule of constitutional construction applies, which provides that when the language of a statute admits of two constructions, one of which keeps the statute within the constitutional limitations, and the other causes it to violate them, the former construction is invariably adopted. Nor is it possible to give the latter construction, in order to secure an avoidance of the statute on the ground of unconstitutionality, even though it is known beyond a reasonable doubt from facts outside of the statute, that this construction will conform more nearly with the real purpose of the legislators. An interesting case of this kind has lately occurred. At the last meeting of Congress (1886), an act was passed, laying a tax upon the sale and manufacture of oleomargarine, and providing a rigid system of inspection and stamping of the goods. The law in form is a legitimate exercise of the congressional power of taxation, and it may be true that some of the members of Congress supported the measure for the purpose of raising revenue. But it can hardly be doubted that the promoters and original advocates of the bill intended it to operate as a restriction upon the sale of oleomargarine in the dairy interests, and the raising of revenue was to them a matter of secondary, if of any, importance. But these occult intentions of the advocates of the bill, even if they could be judicially established, could not affect the constitutionality of the law, as far as it does not contain regulations not suitable as a means for securing a proper collection of the tax.1 Congress is not only unable to prohibit or restrict the prosecution of a trade by the requirement of a license, but it is also denied the power, by granting a license, to authorize the prosecution of a trade, which is prohibited by the laws of the State.2
In the federal state, the independence of the Federal and State governments of each other must be guaranteed by the express or implied limitations of the constitution, in order that the success of the system may be assured. And to such an extent is this limitation upon the power of both considered necessary, that it has been held by the courts that neither the United States nor the State can tax the agencies of the government of the other. The State cannot lay a tax upon the securities of the national government.3
Nor can the United States lay a tax upon the securities and other agencies of the State government.1 “In respect to the reserved powers, the State is as sovereign and independent as the general government. And if the means and instrumentalities employed by the government to carry into operation the powers granted to it are necessarily, and for the sake of self-preservation, exempt from taxation by the States, why are not those of the States depending upon their reserved powers, for like reasons, equally exempt from Federal taxation? Their unimpaired existence in the one case is as essential as in the other. It is admitted that there is no express provision in the constitution that prohibits the general government from taxing the means and instrumentalities of the States, nor is there any prohibiting the States from taxing the means and instrumentalities of that government. In both cases the exemption rests upon necessary implication, and is upheld by the great law of self-preservation; as any government, whose means employed in conducting its operations are subject to the control of another and distinct government, can only exist at the mercy of that government, of what avail are these means if another power may tax them at discretion?”1 For these reasons it has been held that the State cannot tax the property of a bank, or the bank itself, which has been established by the United States government, as a governmental agency, as was the old Bank of the United States, or the present national banks.2 So, also, has it been held incompetent for a State to tax the salary of a United States official, or for the United States to tax the salary of a State official.3 On the same ground, it has been held that the act of Congress, declaring that papers used in judicial process, either as pleadings or as evidence, shall be invalid unless stamped, was unconstitutional in its application to the State courts.4 And it has likewise been held incompetent for the United States to declare an ordinary contract or deed, which is valid according to the State law, invalid because it has not been stamped.5
U. S. Const., art. I., § 8, cl. 1.
U. S. Const., art. I., § 9, cl. 5.
Pace v. Burgess, 92 U. S. 372.
U. S. Const., art. I., § 2; § 9, cl. 4.
Hylton v. United States, 3 Dall. 171; Pac. Ins. Co. v. Soule, 7 Wall. 433; Veazie Bank v. Fenno, 8 Wall. 533; Springer v. United States, 102 U. S. 586.
See Veazie Bank v. Fenno, 8 Wall. 533; National Bank v. United States, 101 U. S. 1.
License Tax Cases, 5 Wall. 462; Pervear v. Commonwealth, 5 Wall. 475; McGuire v. Commonwealth, 3 Wall. 387; Commonwealth v. Thornley, 6 Allen, —; Commonwealth v. O’Donnell, 8 Allen, 548; Commonwealth v. Holbrook, 10 Allen, 200; Block v. Jacksonville, 36 Ill. 301; State v. Carney, 20 Iowa, 82; State v. Stulz, 20 Iowa, 488; State v. Baughman, 20 Iowa, 497.
“That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those measures, is declared to be supreme over that which exerts the control, are propositions not to be denied.” Marshall, Ch. J., in McCulloch v. Maryland, 4 Wheat. 316, 413; Weston v. Charleston, 2 Pet. 449; Bank of Commerce v. New York City, 2 Black, 620; Bank Tax Case, 2 Wall. 200; Society for Savings v. Coite, 6 Wall. 594; Van Allen v. Assessors, 3 Wall. 573; People v. Commissioners, 4 Wall. 244; Bradley v. People, 4 Wall. 459; Banks v. The Mayor, 7 Wall. 16; Bank v. Supervisors, 7 Wall. 26. Revenue stamps are not taxable. Palfrey v. Boston, 101 Mass. 329. United States treasury notes are not taxable. Montgomery Co. v. Elston, 32 Ind. 27. See People v. United States, 93 Ill. 30 (34 Am. Rep. 155), in which the power of the State, to tax the property of the United States held by private individuals for any purpose, was denied. See State v. Jackson, 33 N. J. 450.
Collector v. Day, 11 Wall. 113; Ward v. Maryland, 12 Wall. 418; Railroad Company v. Peniston, 18 Wall. 5; Fifield v. Close, 15 Mich. 505.
Nelson, J., in Collector v. Day, 11 Wall. 113, 124.
McCulloch v. Maryland, 4 Wheat. 316; Osborn v. United States Bank, 9 Wheat. 738. See National Bank v. Commonwealth, 9 Wall. 353.
Dobbins v. Commissioners of Erie Co., 16 Pet. 435; Collector v. Day, 11 Wall. 113; Freedman v. Sigel, 10 Blatchf. 327.
Carpenter v. Snelling, 97 Mass. 452; Green v. Holway, 101 Mass. 243 (3 Am. Rep. 339); Atkins v. Plimpton, 44 Vt. 21; Griffin v. Ranney, 35 Conn. 239; People v. Gates, 43 N. Y. 40; Moore v. Moore, 47 N. Y. 467 (7 Am. Rep. 466); Hale v. Wilkinson, 21 Gratt. 75; Haight v. Grist, 64 N. C. 739; Smith v. Short, 40 Ala. 385; Davis v. Richardson, 45 Miss. 499 (7 Am. Rep. 732); Bumpass v. Taggart, 26 Ark. 398 (7 Am. Rep. 623); Union Bank v. Hill, 3 Cold. 325; Hunter v. Cobb, 1 Bush, 239; Warren v. Paul, 22 Ind. 276; Craig v. Dimmock, 47 Ill. 308; Jones v. Estates of Keep, 19 Wis. 369; Sammons v. Holloway, 21 Mich. 162 (4 Am. Rep. 465); Burson v. Huntington, 21 Mich. 415 (4 Am. Rep. 497); Duffy v. Hobson, 40 Cal. 240.
Moore v. Quirk, 105 Mass. 49 (7 Am. Rep. 499); Sayles v. Davis, 22 Wis. 225.