CHAPTER IV

THE LAW OF TAXATION

40. In our system of government [observes the Supreme Court], it is

oftentimes difficult to fix the true boundary between the two systems,

State and federal [and, adopting the words of Chief Justice Marshall,

proceeds],—endeavoring to fix this boundary upon the subject of

taxation, if we measure the power of taxation residing in a State by

the extent of sovereignty which the people of a single State possess,

and can confer on its government,—we have an intelligible standard

applicable to every case to which the power may be applied. We have

a principle which leaves the power of taxing the people and property

unimpaired; which leaves to a State the command of all its resources,

and which places beyond its reach all these powers which are conferred

by the people of the United States on the government of the Union,

and all these means which are given for the purpose of carrying these

powers into execution. We have a principle which is safe for the States

and safe for the Union.[100] We are relieved, as we ought to be, from

clashing sovereignty.

It follows that the powers and functions of the two governments can

be harmonized “only by a wise and forbearing application of this

principle.”[101]

41. A tax is a burden or charge imposed by the legislature on property

or persons to raise money for public purposes.[102] The two essentials

of a good tax are that it is to be laid for a public purpose and by

authority. The exercise of the taxing power not only distinguishes

sovereignty but also the government which sovereignty creates by

delegation of power. But the State cannot exercise taxing power beyond

its jurisdiction,[103] a limitation parallel to the limitation of the

sovereignty of the State, that is, a version (however unphilosophical)

of the idea in the phrase “residuary sovereignty.”[104] But unless

restrained by the federal Constitution the power of Congress as to

mode, form, or extent of taxation is unlimited.

The test here is jurisdiction.[105] Taxation is the correlative of

protection. As the State cannot protect so it cannot tax beyond its

jurisdiction.[106] Thus the person or the property must be within the

jurisdiction of the State to bring either within its taxing power. Tax

laws can have no extra-territorial operation,[107] but there is no

established limit of the taxing power or to the selection of objects to

which it is applicable.[108]

42. A State Legislature may abuse this power, but the Constitution of

the United States was not intended to furnish a corrective for every

abuse of power committed by the State governments. Relief lies wholly

with the electors within the State who, if the State constitution does

not afford security against unjust taxation and unwise legislation, can

both alter the State constitution and elect other legislators.

So long as the State by its laws, prescribing the mode and

subjects of taxation, does not entrench upon the legitimate

authority of the Union, or violate any right recognized, or secured

by the Constitution of the United States, the (Supreme) Court, as

between the State and its citizens, can afford no relief against

State taxation, however unjust, oppressive, or onerous.

The discretion of the State,—that is, of the State Legislature, is

beyond the power of the federal government, or any of its departments,

to supervise or control.[109]

43. The fundamental idea in America is that each government—the State,

the national—possesses powers and functions adequate to its own

ends and purposes. Thus the State has no power to lay a tax on any

constitutional means employed by the government of the Union to execute

its powers, otherwise, by taxation of such means or agencies,—say the

mail, the mint, judicial process, patent rights,—the States might

defeat all the ends of the national government,—a design not intended

by the people of the United States.[110] But this protection of

government is not limited to the United States by limiting the States;

it applies to the States as limiting the United States.

The sovereign powers vested in the State governments by their

respective constitutions, remain unaltered and unimpaired, except

so far as they were granted to the government of the United

States.[111] As the powers not delegated were reserved to the

States respectively, or to the people, the government of the

United States can claim no powers not so delegated, and the powers

actually granted must be such as are expressly given, or given by

necessary implication.

In our complex system, the existence of the States in their separate

and independent condition

is so indispensable, that without them the general government

itself would disappear from the family of nations.[112] Whence the

necessary conclusion that the means and instrumentalities employed

for carrying on the operations of their governments (the State

governments), for preserving their existence, and fulfilling the

high and responsible duties assigned to them in the Constitution,

should be left free and unimpaired, should not be liable to be

crippled, much less defeated by the taxing power of another

government, which power acknowledges no limits but the will of the

legislative body imposing the tax, and more especially, those means

and instrumentalities which are the creation of their sovereign and

reserved rights, one of which is the establishment of the judicial

department, and the appointing of officers to administer the laws.

Without this power and the exercise of it, no one of the States,

under the form of government guaranteed by the Constitution, could

long preserve its existence.[113]

44. One of the reserved powers of the States was to establish a

judicial department.

All of the thirteen States were in possession of this power, and

had exercised it at the adoption of the Constitution; and it is

not pretended that any grant of it to the general government is

found in that instrument. It is therefore one of the sovereign

powers vested in the States by their constitutions, which remained

unaltered and unimpaired, and in respect to which the State is

as independent of the general government as that government is

independent of the States. In respect to reserved powers, the State

is as sovereign and as independent as the general government.[114]

The means and instrumentalities employed by the one government to carry

its powers into operation are as necessary to its self-preservation as

the means and instrumentalities are necessary to the other. Unimpaired

existence is as essential to the one as to the other. There is no

express provision in the Constitution that prohibits the general

government from taxing the means and instrumentalities of the States,

or prohibiting such taxation.

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, if subject to

the control of another and distinct government, can exist only at

the mercy of that government.[115]

45. This was the constitutional law of the United States as settled in

1870,[116] the case arising in Massachusetts; the plaintiff a judicial

officer of that Commonwealth having brought suit to recover from the

United States Revenue Collector the amount of income tax exacted from

him, it being part of his salary as a judge in that Commonwealth. The

Supreme Court of the United States sustained the plaintiff for reasons

given in the opinion, part of which has been quoted. By parity of

reasoning, as followed in that decision, any act of Congress imposing

a tax on the salary of any State officer, if his office is a means

and instrumentality employed by the State to carry its powers into

operation must be declared unconstitutional. In 1913 the Constitution

was amended so that “The Congress shall have power to lay and collect

taxes on incomes from whatever source derived, without apportionment

among the several States, and without regard to any census or

enumeration.”[117]

Does this amendment increase the taxing power of Congress beyond that

power as possessed prior to 1913 and as limited by the Supreme Court

in its decision in the case of The Collector _v._ Day? If any officer

of a State, executive, legislative, judicial, or administrative,

receives a salary, large or small, (and it forms part of his income) is

it beyond the jurisdiction of the United States as a taxable estate,

despite the explicit power of Congress, in this Sixteenth Amendment “to

lay and collect taxes on incomes, from whatever source derived?” Does

the amendment overrule the decision in The Collector _v._ Day?[118]

Evidently the amendment empowers Congress to levy an income tax wholly

in disregard of the effect of the tax in impairing the “necessary

means and instrumentalities of a State.” Here too the issue is one

of jurisdiction. The person taxed being within the jurisdiction of

the United States has no redress against that jurisdiction more than

has a person, taxed and being within the jurisdiction of a State,

redress against the State. But can the Commonwealth of Massachusetts,

or any other State, imposing an income tax, lay and collect it from

whatever source derived, and that source be the treasury of the United

States,—that income be salary received by a citizen of the State who

also is a federal official, say a federal Judge, or a Collector of

the Revenue, or a United States Marshal, or a Senator of the United

States, or a Congressman, or the President of the United States?[119]

46. In the operations of government, the delegation of authority

by the executive, the legislative, or the judiciary is rare. The

constitutional test, in either case, is purpose and authority. Thus a

municipal corporation is a representative not only of the State, but

is a portion of its governmental power. It is one of its creatures,

made for a specific purpose, to exercise within a limited sphere the

powers of the State. “The action is no less a portion of the sovereign

authority when it is done through the agency of a town or city

corporation.”[120] Thus a tax authorized by the State Legislature, to

be imposed by a municipal corporation is a good tax in law, provided

it is for a public purpose. This is not a delegation of the taxing

power, but is the exercise of it by the Legislature. The municipality

itself has no power to tax, or even to be a municipality, save

by authority of the State, usually by the constitution, vested in

its Legislature. The amount of the tax, the subjects of taxation,

the method of assessment and of collection are wholly within the

discretion of the Legislature. The exemption of churches, schools,

colleges, and charitable institutions may or may not be required by

a State constitution. If this is silent on the subject, the question

is wholly one of legislative discretion. A charitable institution

has no fundamental right to exemption from taxation, as a person

has a fundamental right to “due process of law.”[121] The principle

of exemption from taxation is that taxation of the person or the

property tends to destroy the powers or to impair the efficiency of the

State.[122]

47. A tax must not only be laid by authority but it must be for a

public purpose. Thus any assessment imposed upon persons or property by

the government, State or federal, for the gain, emolument, or advantage

of a private person, or an official, is unconstitutional. The purpose

must be public, as for example, for schools, highways, canals, public

buildings, markets, asylums, jails, or to keep the same in repair and

to use them for public purposes. The Legislature cannot authorize a

town or a county, or any subdivision of the State, to raise money for

other than public purposes and uses. It cannot confer benefits on

individuals, however meritorious, by taxation.[123]

48. Taxes, imposed under the Constitution, have been classed as direct

or indirect,—the direct being apportionable among the States according

to population; the indirect being uniform throughout the United

States.[124]

The Sixteenth Amendment of 1913 abolishes the limitation of

apportionment or enumeration in the imposition and collection of an

income tax. The Income Tax law of October 3, 1913—the first of the kind

enacted by Congress under the amendment—exempted incomes of $3000, or

less, or $4000, or less, as the person taxed may be single or married.

The amount of the exemption is fixed at the discretion of Congress. So

too is the rate of taxation by duties, imposts, and excises, as well as

the inclusion or exclusion of articles subject to them, but Congress

must make such taxes uniform throughout the United States.[125]

The taxing power may be used to encourage or to discourage an

activity, or to destroy it. As thus used, the exercise of the taxing

power, whether by the State or by the United States, may characterize

the policy, or administration of its government. So too if a State

engages in manufacturing, or in any activity or occupation taxable

under federal revenue laws, it is amenable in taxes like a private

person.[126]

The Essentials of American Constitutional Law · 第 4 / 13 章