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(found in this volume), are the first instances wherein important measures have been passed by the requisite two-thirds majority. 275-279. And as the president urged the unconstitutionality of the measures, particularly the last, the question of the duty of the executive to see the laws faithfully executed, which he still believes to be unconstitutional, or still to urge his objections after they had been over. come, according to prescribed forros, is for the first time before the judgment of the nation. The very fact that the measures are in regard to States, which the president contenils are entitled to repre- 46. sentation, may have no small influence upon his judgment. Presi. deni's Message, Dec., 1861.

68. “Two THIRDS."-On the 7th July. 1856, the senate of the What is a United States decided, by a vote of thirty-four to seven, that two. Quoruin? thirds of a quorum only were requisite to pass a bill over the president's velo, and not two-thirds of the whole senate. 9 Law Rep. 196. In the ratification of treaties, it is expressly provided that two-thirds of the senators present shall concur. And see Cushing's 178 Law of Legislative Assemblies, $ 2337; see Story's Const. S 891; i Kent's Com. 249, note b.

69. The president must receive the bill ten entire days before What of the adjournment, or it will not become a law. Hyde v. White, 24 Tex, ten days? 143, 115; Paschal's Annotated Dig. note 193, p. 62.



[3.] Every order, resolution, or vote, to which the Whit shali

be presented concurrence of the senate and house of representatives

to the presimay be necessary (except on a question of adjournment), shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him; or being disapproved by him, shall be repassed by two-thirds of the senate and house of representatives, according to the rules and limit:- Has he the tions prescribed in the case of a bill.





70. A JOINT RESOLUTION approved by the president, or diily Have joint passed without his approval, has all the effect of law. But se pa. resolutions rale re olutions of either house of congress, except in matters ap- law?

the effect of pertaining to their own parliamentary rights, have no legal effect to constrain the action of the president, or of the heads of depart

6 Opin. 680. The concurrent resolution" of 1866 in reference to the States in rebellion, not being admitted by either house, was not submitted to the president.

The reason for the exception as to adjournments is, that this is a Why the er. power peculiarly fitted to be exercised by the two houses in order ception as to to secure their independience and prompt action. $ 892.

Story's Const, a:djourn.




With what

Sec. VIII.-The Congress shall have powerlimitations is the word 71. POWER.—In this connection means authority to enact. It poucer to be is to be taken in connection, 1, with the general declaration of the considered ! 14.

first section, that all legislative POWER herein granted shall be 41, 45.

vested in a Congress of the United States;" 2, with the last clause

in this section, “ to make all laws which shall be necessary and 188. proper for carrying into execution the foregoing powers, and all

other powers vested by this Constitution in the government of the 112, 144. United States, or in any department thereof;" 3, with the inhibi. 268, 269. tions in the 9th and 10th sections of this article; 4, with the IXth 1, 148.

and Xth amendments; 5, with all the necessary powers growing

out of other subjects contemplated by the Constitution. Are the fol. Although the powers here following have been called by Mr. Jowing prop- Hamilton. Mr. Jefferson, Mr. Madison, and almost by universal cuserly enumerated powers:

tom "enumerated powers," and are generally divided by Arabic num.

bers into eighteen clauses, yet it will be seen by reference to the Note p. 28, authentic copy printed from the original, that, like the versification

in the Bible, the enumeration has been the work of printers. Yet 269. the practice of calling these special powers " enumerated" has too

long obtained to ever be abandoned. Hamilton: Federalist, No. P. 365.

83; Jefferson: Opinion on the Bank, 1781: Madison ; Veto Message of 1817; Monroe: veto message of 1822 ; Farrar, S 283–288; Story's

Const. $ 981. Were the fol The powers specifically granted to Congress are what are called lowing spe- enumerat d powers, and are numbered in the order in which they stand. cial powers actually

(Monroe, 4th May, 18:22.) Story's Const. S 981. Certified copies enumerated of the Constitution have been printed by Hickey, Curtis, and Far. in the origi

rar, and now' by the author, in which the enumeration of articles and the constitu- sections appear; but there is none for the clauses. For convenience tion: the enumeration of clauses is retained in [brackets). The editor

does not partake of the belief that the habit of calling the following powers enumerated has been a fruitful source of misconstruction;

for without the figures every mind would number them for itself. What are

[2.] To lay and collect taxes, duties, impo-ts, and the powers and objects excises; to pay the debts and provide for the common of taxation!

defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform through out the United States.

72. “Taxes."Taxare. In the civil law. To rate or value.

Calv. Lex. To lay a tax or tribute. Spellman. In old English 22, 23. practice, to assess; to rate or estimate: to moderate or lay an

assessment or rate. Burrill's Law Dic., Tax. A rate or sum of 358.

money assessed on the person or property of a citizen, by government, for the use of the nation or State. (Webster.) In a general sense—any contribution imposed by government upon individuals, for the use and service of ihe State; whether under the name of toll, tribute, tallage, gabel, impost, duty, custom, excise, subsidy, aid, supply, or other name. (Story, Const. S 172; 1 Kent's Com. 254-257. Burrill's Law Dic., Taxes; Tomlin's Law Dic. Tas.)

nal draft of

Define tax.

22. 144


22. 28.


In a stricter sense-a rate or sum imposed by government upon what in a individuals (or polls). lands, houses, horses, cattle, possessions, and stricter occupations; as distinguished from customs du:ies, imposts, and sense ? ercises. (Id. ; Webster.) This is the ordinary sense of the word. Iu New York, the term tax has been held not to include a street assessment. 1 Johns. 77, 80; Sharp v. Spear, 4 Hill, 76 ; People v. Brooklyn, 4 Comst. 419.) Literally, or according to its deri- What litervation--an imposition laid by government upon individuals, accord- ally ? ing to a certain order and proportion, (tributum certo ordine constitutu). (Spelman, voc. TAXA) Id. Distinguished from eminent domain. People v. Brooklyn, 4 Comst. 422-425 ; s. 0. 6 Barb. 214. * Taxes" means burdens, charges, or impositions, put or set upon persons or property for public uses; and this is the definition which the Code gives to tailage. 2 Inst. 522; Carth. 438; Matter of the Mayor, &c. 11 John. 80.

73, THE POWER TO LAY AND COLLECT taxes, duties, imposts, and Over what excises, is co-extensive with the territory of the United States. extent of Loughborough v. Blake, 4 Wh. 317.

The power of taxation, as a general rule, is a concurrent power. How far is The qualifications of the rule are the exclusion of the States from the power the taxation of the means and instruments employed in the exercise of the functions of the federal government. Van Allen v. The Assessors, 3 Wallace, 585.

74. The States possess the power to tax the whole of the inter. What power est of the shareholder in the shares held by him in the national have the banks. Van Allen v. The Assessors, 3 Wallace, 588; approved, tas Bradley v. The People, 4 Wallace, 162. Chief Justice Chase, in a dissentient opinion for himself and Justices Wayne and Swayne, reviewed McCulloch v. Maryland. 4 Wheat. 327, and Osborn v. the Bank of the United States, 9 Wheat. 73, Weston v. The city of Charleston. 2 Pet. 449, and questioned the power of Congress to authorize State taxation of national securities, either directly or indi rectly. Van Allen v. The Assessors, 3 Wallace, 593.

A city cannot tax United States property within its limits. 9th What liiniOp. 291.

The jurisdiction of the States for the purposes of State taxation is the states ? supreme, and Congress can have no power or control in this regard. State Treasurer v. Wright, 28 Ill. 509; Gibbons v. Ogden, 9 Wh. 199.

The State has the right to collect taxes in gold or silver coin only; and Congress cannot control by its legal tender laws. State Treas. urer v. Wright, 28 III. 509.

The States cannot impose a tax upon the salaries of federal offi. 97, 99, 155. cers. (Dobbins v. The Commissioners of Erie County, 16 Pet. 435.) 9th Op. 477.

75. DUTIES.-- Almost equivalent to taxes and perhaps si nonym. What are ous with the imposts. (Feieralist Noz. 30, 36. Madison's letter duties? to Cabell. 18th Sept. 1823; 3 Eilioi's Debates, 289.) Story's Coust.

72, 76. & 952; Hylton v. The United States, 3 Dall. 171, 177.

76. IXPOSTS.-A custom or tax levied on articles brought into a Define imcountry. (United States v. Tappan, 11 Wheat. 419. A duty on Posts ?

States to

tation as to



cense con

imported goods and merchandise. Story's Const. 952. Id. 75. Abridgment, $ 472. Burrill's Law Dic. Impost. In a large sense, 144 any tax, duty or imposition. Id.

77. EXCISE. An inland imposition upon commodities, charged What are in most cases on the manufacturer. 2 Steph. Com. 579. A duty,

excises ! tax on certain articles produced or consumed at home. 144 Wharton's Lex. EXCISE. 1 Bl. Com. 318. It includes also the duties on licenses and auction sales. 2 Steph. Com. 581; 3 Id. 314. And see Story's Const. $ 953. Andrews Rev. Laws, § 133; Burrill's Law Dic. Excise. 2 Elliot's Debates, 209. Generally the opposite of imposts. Story's Const. S 953.

Licenses under the act of June 30, 1864, "to provide interval What revenue to support the government, &c." (18 Stat. 223), and the authority

does a liamendatory acts, conveyed to the licensee no authority to carry on the licensed business within a Slate. License Tax Cases, 5 Wal- fer? lace, 462. The requirement of payment for such licenses is only a mode of imposing taxes on the licensed business, and the prohibition under penalties, against carrying on the business without license is only a mode of euforcing the payment of such taxes. The provisions of the act of Congress requiring such licenses, and imposing penalties for not taking out and paying for them, are not contrary to the Coustitution or to public policy. Id.

The provisions in the act of July 13, 1866, “to reduce internal taxation, &c." (14 Stat. 93), for the imposing of special taxes, in lieu of requiring payment for licenses, removes whatever ambiguity existed in the previous laws, and are in harmony with the Constitution and public policy. Id.

The recognition by the acts of Congress of the power and right 78. of the States to tax, control, or regulate any business carried on What is the within its limits is entirely consistent with an intention on the part power of the of Congress to tax such business for national purposes.

A license from the Federal Government, under the internal rer. enue acts of Congress, is no bar to an indictment under a State law 267. prohibiting the sale of intoxicating liquors. The License Tax Cases, 5 Wallace, 462; Pervear v. Commonwealth : 5 Wallace, 475.

But very different considerations apply to the internal commerce What are or domestic trade of the States. Over this commerce and trade the exclu.

sive rights of Congress has no power of regulation nor any direct control. This

the States power belongs exclusively to the States. No interference by Congress with the business of citizens transacted wi hin a State is warranted by the Constitution, except such as is str ctly incidental to the exercise of powers clearly granted to the legislature. Pervear y. Commonwealth, 470, 471.

The provisions in the act of July 13, 1866, "to reduce internal taxation, &c." (14 Siat. 93), for the imposing of special taxes, in lieu of requiring payment for licenses, removes whatı ver ambiguity existed in the previous laws, and are in harmony with the constition ind public policy. Id.

The recognition by the acts of Congress of the power and right of Ilie States to tax, control, or regulate any business carried on within its limits is entirely consistent with an intention on the part of Congress to tax such business for National purp ses.


A license from the Federal Government, under the internal revenue acts of Congress, is no bar to an indictment under a State 267. law prolıibiting the sale of intoxicating liquors. (The License Tax Cases, 5 Wallace, 462 affirmed.) Pervear v. The Commonwealth, 5 Wallace, 475.

A law of a State taxing or prohibiting a business already taxed of prohibithy Congress, as ex. gr., the keeping and sale of intoxicating ory laws ? liquors, -Congress having declared that its imposition of a tax should not be taken to abridge the power of the State to tax or prohibit the licensed business—is not unconstitutional. Id.

78. “ TO PAY THE DEBts.” The arrangement and phraseology What means connected with what follows) shows that the latter part of the to pay the clause ("* To provide for the common defence and general welfare,”)


79, 80. Was intended to enumerate the purposes for which the money thus raised was intended to be appropriated. (President Monroe's Mes. sare of 4th Dec. 1822.) Story's Const. $ 978-981.

74–77. This power to collect tases, imposts, and excises, subjects to the call of Congress every branch of the public revenue, internal and

360. external. (Monroe, Id.) Story's Const. § 981. And these powers give the right of appropriating to the purposes specified, according to the proper construction of the terms. Id. Statement of the public debt on the 1st day of January in each of the Examine the

years from 1791 to 1842, inclusive, and at various dates in sub- statement of sequent years to July 1, 1866.

the publio

debt? On the 1st day of January....1791.

$ 75,463,476 52 1792,

77,227,924 66 1793

80,352,634 04 1794.

78.427,404 77 1795

80,747,587 38 1796.

83,762,172 07 1797

82,064,479 33 1798

79,228,529 12 1799.

78,408,669 77 1800.

82,976,294 35 1801.

83,038,050 80 1802

80,712,632 25 1803.

77,054,686 30 1804

86.427,120 88 1805.

82,312,150 50 1806.

75,723,270 66 1807.

69,218,398 64 1808.

65,196,317 97 1809

57,023,192 09 1810.

53,173,217 52 1811.

48,005,587 76 1812.

45, 209,737 90 1813

55,962,827 57 1814.

81,487,816 24 1815.

99,833,660 15 1816.

127,334,933 74 1917.

123,491,965 16

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