IN THE SUPREME COURT OF THE UNITED STATES. October Term, 1900. ELIAS S. A. DE LIMA ET. AL., PLAINTIFFS IN ERROR, v. GEORGE R. SAMUEL B. DOWNES ET AL., PLAINTIFFS IN ERROR, v. GEORGE R. HENRY W. DOOLEY ET AL., PLAINTIFFS IN ERROR, v. THE UNITED HENRY W. DOOLEY ET AL., PLAINTIFFS IN ERROR, v. THE UNITED STATES. CARLOS ARMSTRONG, APPELLANT, v. THE UNITED STATES. No. 509. GEORGE W. CROSSMAN ET AL., APPELLANTS, v. THE UNITED ARGUMENT OF THE ATTORNEY-GENERAL FOR THE UNITED STATES. The remarks hereby submitted are intended to be supplemental to the argument addressed to the court by the Attorney-General on behalf of the United States in the Goetze case and the case of Fourteen Diamond Rings, and relate more especially to the construction of the clause of the Constitution which requires duties, imposts, and excises roughout the United States. under discussion involve the constitutionality of the Pons of the Porto Rico act and the special tariff clause of annexation of Hawaii. on behalf of the appellant in the case of Armstrong contains so many erroneous statements of the view and the Attorney-General has taken on behalf of the United is question that I feel it necessary to point out these ons. For instance, on page 30 of their brief, it is said: The Attorney-General, in his brief in the Goetze case, contends that the ordinary and necessary sovereign powers of an independent nation demand an unlimited hand in the government of territory outside of the States of the American Union; that but for this unlimited power this Government would not be able to exercise the functions of an independent nation. Counsel further, in their brief, declare that "Congress is omnipotent nowhere on the face of the earth" (p. 31). "Despotic power and omnipotence are not among the prerogatives of the President or the Congress, or of both together" (p. 32). "He (the Attorney-General) reduces territorial possessions to mere property, and declares that the inhabitants thereof have no rights which an independent government is bound to respect” (p. 32). "In short, he contends that monarchical powers must be possessed by all independent governments; that such powers are absolutely necessary to the performance of the duties of independent governmentin other words, that our Government, instead of being 'the land of the free,' is the most unlimited of despotisms." "To sustain the position taken by the Government in denying to the new possessions a United States status, the Government of the United States must be a despotism as to all territory outside of the States." "Congress is no more supreme in the Territories than it is in the States, in fact" (p. 35). The consequences of the contention of the Government are stated to be: "That the Congress of the United States and the President in their treatment of the people of these places are not operating under the Constitution" (p. 37). In the Goetze case I referred to the undisputed contention of the appellants that "The Government of the United States is one of delegated powers and that its powers are not absolute and untrammeled, but subject to certain limits never and nowhere to be transcended.” I stated the position of the Government to be that the United States has been vested, not with all powers, but only with certain particular powers. These particular delegated powers are in some respects limited and confined in scope and operation, but in other respects they are entirely unlimited. I asserted that the contention of the Government did not imply the possession by Congress of all unlimited and despotic powers in the government of territory. I declared that in this respect nothing further was meant or intended by the AttorneyGeneral than was meant by this court when it declared the power of Congress over the Territories to be general and plenary, or when it declared, through Mr. Justice Bradley, in the Mormon Church case, that "In legislating for the Territories Congress would doubtless be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments, but these limitations would exist rather by inference and the general spirit of the Constitution than by any express and direct application of its provisions.' I beg to call attention to all that was said by me in that brief upon this subject. See brief, in Goetze case, page 10, etc. We plant ourselves upon the principle announced by this court in the Mormon Church case. Do our opponents dispute its soundness or INDIRECT TAXES NEED NOT BE UNIFORM THROUGHOUT THE TERRITORY OF THE The Constitution has not provided for absolute uniformity of duties under all circumstances. States may still impose imposts and duties on imports and exports and duty of tonnage, provided Congress consent thereto. (Constitution, Art. I, sec. 10, pars. 2 and 3.) The uniformity clause of the Constitution refers to the States and not to (a) The historical reasons for its insertion into the Constitution prove this. (b) The phrase "throughout the United States" elsewhere used in the Constitution refers only to the States. Article I, section 8, paragraph 4; Article II, section 1, paragraph 3. See Sturges v. Crowninshield (4 Wheat., 122). Similar meanings should be attached to the same phrase wherever it occurs unless some different meaning is clearly indicated by the con text. (c) The power to tax within the limits of territory is not derived from article 1, section 8, paragraph 1, but from the general power to make all needful rules and regulations respecting the territory belonging to the United States. (d) The States, by the compact of submission to the Government organized under the Constitution, were to stand on a perfect equality with each other. The Congress was forbidden to exercise any discrimination between the States or their several ports. As to the Territories no such compact was made. The full power of taxation was conferred on Congress along with the power to govern them; and in the exercise of the power Congress possesses unrestricted discretion both as to the subjects of taxation and the places where it shall be levied and those where it shall not be levied. As between the different Territories there is no compact in favor of uniformity. Such uniformity is not essential for the protection of the States as between each other, because the Territories are the common property of all of the States, and whatever is done as to Territorial taxation is done by the authority of the States and for their equal benefit. (e) There are obvious reasons of prudence and policy for not requiring the revenue laws, which must be uniform throughout the States, to be uniform also throughout the Territories. This is expressly decided to be so as to direct taxes. (Loughborough v. Blake.) For the same reasons, and for other reasons as well, the same is true as to indirect taxes. The internal revenue, or tariff, or license laws, made for the States, may be inconvenient, oppressive, unprofitable, impolitic, for the Territories. Those laws may be wise and politic for some and very unwise and impracticable for other Territories. L Congress ought to possess, and we contend does possess, the power to vary its system of taxation according to the location, conditions, and circumstances of the different territories.. . Otherwise not only will the Government be embarrassed and hampered, but actual injustice will be done to some sections of our possessions. (f) It is conceded that Congress has such power to vary the system of taxation for local purposes. But in principle and in reality there is no difference between local taxation and general taxation upon territorial property. There were reasons why the limits of taxation upon the States should be fixed by the Constitution. Equality between the States was the prime and most evident object to be attained. To that end were established the rule of apportionment as to direct taxes and the rule of conformity throughout all the States as to duties, imposts, and excises. Story, answering the question why "duties, imposts, and excises" are required to be uniform throughout the United States, says: The answer to the latter may be given in a few words. It was to cut off all undue preferences of one State over another in the regulation of subjects affecting their common interests. Unless duties, imposts, and excises were uniform, the grossest and most oppressive inequalities, vitally affecting the pursuits and employ ments of the people of different States, might exist. The agriculture, commerce, or manufactures of one State might be built up on the ruins of those of another; and a combination of a few States in Congress might secure a monopoly of certain branches of trade and business to themselves, to the injury, if not to the destruction, of their less-favored neighbors. The Constitution, throughout all its provisions, is an instrument of checks and restraints, as well as of powers. It does not rely on confidence in the General Government to preserve the interests of all the States. It is founded in a wholesome and strenuous jealousy, which, foreseeing the possibility of mischief, guards with solicitude against any exercise of power which may endanger the States, as far as it is practicable. If this provision as to uniformity of duties had been omitted, although the power might never have been abused to the injury of the feebler States of the Union (a presumption which history does not justify us in deeming quite safe or certain), yet it would, of itself, have been sufficient to demolish, in a practical sense, the value of most of the other restrictive clauses in the Constitution. New York and Pennsylvania might, by an easy combination with the Southern States, have destroyed the whole navigation of New England. A combination of a different character, between the New England and the Western States, might have borne down the agriculture of the South; and a combination of a yet different character might have struck at the vital interests of manufacturers. (2 Story on Constitution, sec. 957.) He discusses the cognate clauses of the Constitution relating to taxation by the States, showing that all of those clauses are a part of one and the same system and have the same object, viz, the regulation of taxes within the States and by the States. "No State shall, without the con sent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports and exports shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of Congress. No State shall, without the consent of Congress, lay any tonnage duty." In the first draft of the Constitution the clause stood: "No State, without the consent," etc., "shall lay imposts or duties on imports." The clause was then amended by adding "or exports," not, however, without opposition, six States voting in the affirmative and five in the negative; and again, by adding "nor with such consent, but for the use of the Treasury of the United States," by a vote of nine States against two. In the revised draft the clause was reported as thus amended. The clause was then altered to its present shape by a vote of ten States against one; and the clause which respects the duty on tonnage was then added by a vote of six States against four, one being divided. So that it seems that a struggle for State powers was constantly maintained with zeal and pertinacity throughout the whole discussion. If there is wisdom and sound policy in restraining the United States from exercising the power of taxation unequally in the States, there is, at least, equal wisdom and policy in restraining the States themselves from the exercise of the same power injuriously to the interests of each other. A petty warfare of regulation is thus prevented, which would rouse resentments and create dissensions, to the ruin of the harmony and amity of the States. The power to enforce their inspection laws is still retained, subject to the revision and control of Congress; so that sufficient provision is made for the convenient arrangement of their domestic and internal trade, whenever it is not injurious to the general interests. (Idem., sec. 1016.) "No tax or duty shall be laid on articles exported from any State. (a) No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; (b) Nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another." The obvious object of these provisions is to prevent any possibility of applying the power to lay taxes or regulate commerce injuriously to the interests of any one State so as to favor or aid another. If Congress were allowed to lay a duty on exports from any one State, it might unreasonably injure, or even destroy the staple productions or common articles of that State. The inequality of such a tax would be extreme. In some of the States the whole of their means result from agricultural exports. In others a great portion is derived from other sources; from external fisheries, from freights, and from the profits of commerce in its largest extent. The burden of such a tax would, of course, be very unequally distributed. The power is, therefore, wholly taken away to intermeddle with the subject of exports. On the other hand, preferences might be given to the ports of one State, by regulations either of commerce or revenue, which might confer on them local facilities or privileges in regard to commerce or revenue. And such preferences might be equally fatal, if indirectly given under the milder form of requiring an entry, clearance, or payment of duties, in the ports of any State other than the ports of the State to or from which the vessel was bound. (Idem, sec. 1013, 1014.) |