A stamp tax on a foreign bill of lading is, in substance and
effect, equivalent to a tax on the articles included in that bill
of lading, and therefore is a tax or duty on exports, and therefore
in conflict with Article I, § 9, of the Constitution of the United
States, that "No tax or duty shall be laid on articles exported
from any state."
An act of Congress is to be accepted as constitutional unless,
on examination, it clearly appears to be in conflict with
provisions of the federal Constitution.
If the Constitution in its grant of powers is to be able to
carry into full effect the powers granted, it is equally imperative
that, where prohibition or limitation is placed upon the power of
Congress, that prohibition or limitation should be enforced in its
spirit and to its entirety.
On March 7, 1900, plaintiff in error was convicted in the
District Court of the United States for the District of Minnesota
on the charge of issuing, as agent of the Northern Pacific
Railway
Page 181 U. S. 284
Company, an export bill of lading upon certain wheat exported
from Minnesota to Liverpool, England, without affixing thereto an
internal revenue stamp as required by the Act of June 13, 1898, 30
Stat. 448. Upon that conviction, he was sentenced to pay a fine of
$25. His contention on the trial was that that act, so far as it
imposes a stamp tax on foreign bills of lading, is in conflict with
Article I, Section 9, of the Constitution of the United States,
which reads: "No tax or duty shall be laid on any articles exported
from any state." This contention was not sustained by the trial
court, and this writ of error was sued out to review the judgment
solely upon the foregoing constitutional question.
Section 6 of the act reads:
"SEC. 6. That on and after the first day of July, eighteen
hundred and ninety-eight, there shall be levied, collected, and
paid, for and in respect of the several bonds, debentures, or
certificates of stock and of indebtedness, and other documents,
instruments, matters, and things mentioned and described in
schedule A of this act, or for or in respect of the vellum,
parchment, or paper upon which such instruments, matters, or
things, or any of them, shall be written or printed, by any person
or persons or party who shall make, sign, or issue the same, or for
whose use or benefit the same shall be made, signed, or issued, the
several taxes or sums of money set down in figures against the same
respectively, or otherwise specified or set forth in the said
schedule."
In Schedule "A" is this clause:
"Bills of lading or receipt (other than charter party) for any
goods, merchandise, or effects, to be exported from a port or place
in the United States to any foreign port or place, ten cents."
Also the following:
"It shall be the duty of every railroad or steamboat company,
carrier, express company, or corporation, or person whose
occupation is to act as such, to issue to the shipper or consignor,
or his agent, or person from whom any goods are accepted for
transportation, a bill of lading, manifest, or other evidence of
receipt and forwarding for each shipment received for carriage and
transportation, whether in bulk or in boxes, bales, packages,
bundles, or not so enclosed or included, and there shall be duly
attached
Page 181 U. S. 285
and cancelled, as is in this act provided, to each of said bills
of lading, manifests, or other memorandum, and to each duplicate
thereof, a stamp of the value of one cent."
And this proviso at the end of the schedule:
"
Provided, That the stamp duties imposed by the
foregoing schedule on manifests, bills of lading, and passage
tickets shall not apply to steamboats or other vessels plying
between ports of the United States and ports in British North
America."
MR. JUSTICE BREWER delivered the opinion of the Court.
The constitutionality of an act of Congress is a matter always
requiring the most careful consideration. The presumptions are in
favor of constitutionality, and before a court is justified in
holding that the legislative power has been exercised beyond the
limits granted, or in conflict with restrictions imposed by the
fundamental law, the excess or conflict should be clear. And yet,
when clear, if written constitutions are to be regarded as of
value, the duty of the court is plain to uphold the Constitution
although, in so doing, the legislative enactment falls. The
reasoning in support of this was, in the early history of this
Court, forcibly declared by Chief Justice Marshall in
Marbury v.
Madison, 1 Cranch 137,
5 U. S. 177, and
nothing can be said to add to the strength of his reasoning. His
language is worthy of quotation:
"The Constitution is either a superior paramount law,
unchangeable by ordinary means, or it is on a level with ordinary
legislative acts, and, like other acts, is alterable when the
legislature shall please to alter it."
"If the former part of the alternative be true, then a
legislative act contrary to the Constitution is not law; if the
latter
Page 181 U. S. 286
part be true, then written constitutions are absurd attempts on
the part of the people to limit a power in its own nature
illimitable."
"Certainly all those who have framed written constitutions
contemplate them as forming the fundamental and paramount law of
the nation, and consequently the theory of every such government
must be that an act of the legislature repugnant to the
constitution is void."
"This theory is essentially attached to a written constitution,
and is consequently to be considered, by this Court, as one of the
fundamental principles of our society. . . ."
"It is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the rule to
particular cases must of necessity expound and interpret that rule.
If two laws conflict with each other, the courts must decide on the
operation of each."
"So if a law be in opposition to the Constitution, if both the
law and the Constitution apply to a particular case, so that the
court must either decide that case conformably to the law,
disregarding the Constitution, or conformably to the Constitution,
disregarding the law, the court must determine which of these
conflicting rules governs the case. This is of the very essence of
judicial duty."
"If, then, the courts are to regard the Constitution, and the
Constitution is superior to any ordinary act of the legislature,
the Constitution, and not such ordinary act, must govern the case
to which they both apply."
"
* * * *"
"The particular phraseology of the Constitution of the United
States confirms and strengthens the principle, supposed to be
essential to all written constitutions, that a law repugnant to the
Constitution is void, and that courts as well as other departments
are bound by that instrument."
This judicial duty of upholding the provisions of the
Constitution as against any legislation conflicting therewith has
become now an accepted fact in the judicial life of this nation.
That in the enforcement of this rule the decisions, national and
state, are not all in harmony is not strange. Conflicts
Page 181 U. S. 287
between constitutions and statutes have been easily found by
some courts. It has been said, and not inappropriately, that in
certain states, the courts have been strenuous as to the letter of
the state constitution, and have enforced compliance with it under
circumstances in which a full recognition of the spirit of the
Constitution and the general power of legislation would have
justified a different conclusion. We do not care to enter into any
discussion of these varied decisions. We proceed upon the rule,
often expressed in this Court, that an act of Congress is to be
accepted as constitutional unless, on examination, it clearly
appears to be in conflict with provisions of the federal
Constitution.
In the light of this rule, the inquiry naturally is upon what
principles and in what spirit should the provisions of the federal
Constitution be construed? There are in that instrument grants of
power, prohibitions, and a general reservation of ungranted powers.
That in the grant of powers there was no purpose to bind
governmental action by the restrictive force of a code of criminal
procedure has been again and again asserted. The words expressing
the various grants in the Constitution are words of general import,
and they are to be construed as such, and as granting to the full
extent the powers named. Further, by the last clause of Section 8,
Article I, Congress is authorized
"to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other powers
vested by this Constitution in the government of the United States,
or in any department or officer thereof."
This, construed on the same principles, vests in Congress a wide
range of discretion as to the means by which the powers granted are
to be carried into execution. This matter was at an early day
presented to this Court, and it was affirmed that there could be no
narrow and technical limitation or construction; that the
instrument should be taken as a constitution. In the course of the
opinion, the Chief Justice said:
"The subject is the execution of those great powers on which the
welfare of a nation essentially depends. It must have been the
intention of those who gave these powers to insure, as far as human
prudence could insure, their beneficial execution.
Page 181 U. S. 288
This could not be done by confining the choice of means to such
narrow limits as not to leave it in the power of Congress to adopt
any which might be appropriate and which were conducive to the end.
This provision is made in a Constitution intended to endure for
ages to come, and consequently to be adapted to the various crises
of human affairs. To have prescribed the means by which government
should in all future time execute its powers would have been to
change entirely the character of the instrument, and give it the
properties of a legal code. It would have been an unwise attempt to
provide, by immutable rules, for exigencies which, if foreseen at
all, must have been seen dimly, and which can be best provided for
as they occur. To have declared that the best means shall not be
used, but those alone without which the power given would be
nugatory, would have been to deprive the legislature of the
capacity to avail itself of experience, to exercise its reason, and
to accommodate its legislation to circumstances."
McCulloch v.
Maryland, 4 Wheat. 316,
17 U. S.
415.
And thereafter, in language which has become axiomatic in
constitutional construction (p.
17 U. S. 421)
--
"We admit, as all must admit, that the powers of the government
are limited, and that its limits are not to be transcended. But we
think the sound construction of the Constitution must allow to the
national legislature that discretion with respect to the means by
which the powers it confers are to be carried into execution, which
will enable that body to perform the high duties assigned to it in
the manner most beneficial to the people. Let the end be
legitimate, let it be within the scope of the Constitution, and all
means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter and spirit of
the Constitution, are constitutional."
It is true that in that and other kindred cases, the question
was as to the scope and extent of the powers granted, and the
language quoted must be taken as appropriate to that question and
as stating the rule by which the grants of the Constitution should
be construed.
We are not here confronted with a question of the extent of the
powers of Congress, but one of the limitations imposed by
Page 181 U. S. 289
the Constitution on its action, and it seems to us clear that
the same rule and spirit of construction must also be recognized.
If powers granted are to be taken as broadly granted, and as
carrying with them authority to pass those acts which may be
reasonably necessary to carry them into full execution -- in other
words, if the Constitution in its grant of powers is to be so
construed that Congress shall be able to carry into full effect the
powers granted, it is equally imperative that where prohibition or
limitation is placed upon the power of Congress, that prohibition
or limitation should be enforced in its spirit and to its entirety.
It would be a strange rule of construction that language granting
powers is to be liberally construed and that language of
restriction is to be narrowly and technically construed. Especially
is this true when, in respect to grants of powers, there is, as
heretofore noticed, the help found in the last clause of the eighth
section, and no such helping clause in respect to prohibitions and
limitations. The true spirit of constitutional interpretation in
both directions is to give full, liberal construction to the
language, aiming ever to show fidelity to the spirit and
purpose.
With this rule in mind, we pass to a consideration of the
precise question presented. The constitutional provision is, "no
tax or duty shall be laid on any articles exported from any state."
The statute challenged imposes on
"bills of lading . . . for any goods, merchandise, or effects,
to be exported from any port or place in the United States to any
foreign port or place, ten cents."
The contention on the part of the government is that no tax or
duty is placed upon the article exported; that, so far as the
question is in respect to what may be exported and how it should be
exported, the statute, following the Constitution, imposes no
restriction; that the full scope of the legislation is to impose a
stamp duty on a document not necessarily, though ordinarily, used
in connection with the exportation of goods; that it is a mere
stamp imposition on an instrument, and, similar to many such taxes
which are imposed by Congress by virtue of its general power of
taxation, not upon this alone, but upon a great variety of
instruments used in the ordinary transactions of business. On the
other hand, it is insisted that, though Congress, by
Page 181 U. S. 290
virtue of its general taxing power, may impose stamp duties on
the great bulk of instruments used in commerce, yet it cannot, in
the exercise of such power, interfere with that freedom from
governmental burden in the matter of exports which it was the
intention of the Constitution to protect and preserve. It must be
noticed that, by this act of 1898, while a variety of stamp taxes
are imposed, a discrimination is made between the tax imposed upon
an ordinary internal bill of lading and that upon one having
respect solely to matters of export. An ordinary bill of lading is
charged one cent; an export bill of lading ten cents. So it is
insisted that there was not simply an effort to place a stamp duty
on all documents of a similar nature, but, by virtue of the
difference, an attempt to burden exports with a discriminating and
excessive tax.
The requirement of the Constitution is that exports should be
free from any governmental burden. The language is, "no tax or
duty." Whether such provision is or is not wise is a question of
policy with which the courts have nothing to do. We know
historically that it was one of the compromises which entered into
and made possible the adoption of the Constitution. It is a
restriction on the power of Congress, and as, in accordance with
the rules heretofore noticed, the grants of powers should be so
construed as to give full efficacy to those powers and enable
Congress to use such means as it deems necessary to carry them into
effect, so in like manner a restriction should be enforced in
accordance with its letter and spirit, and no legislation can be
tolerated which, although it may not conflict with the letter,
destroys the spirit and purpose of the restriction imposed. If, for
instance, Congress may place a stamp duty of t en cents on bills of
lading on goods to be exported, it is because it has power to do
so, and if it has power to impose this amount of stamp duty, it has
like power to impose any sum in the way of stamp duty which it sees
fit. And it needs but a moment's reflection to show that thereby it
can as effectually place a burden upon exports as though it placed
a tax directly upon the articles exported. It can, for the purposes
of revenue, receive just as much as though it placed a duty
directly upon the
Page 181 U. S. 291
articles, and it can just as fully restrict the free exportation
which was one of the purposes of the Constitution.
The power to tax is the power to destroy. And that power can be
exercised not only by a tax directly on articles exported, but also
and equally by a stamp duty on bills of lading evidencing the
export. To the suggestion that a stamp duty is necessarily small in
amount, we reply that the fact is to the contrary. The act by which
the stamp tax in question was imposed imposes a like tax on many
other instruments, and in some instances graduating the amount
thereof by the value of the property conveyed or affected by the
instrument taxed. Thus, "each sale, agreement of sale, or agreement
to sell any products or merchandise at any exchange, or board of
trade, or other similar place" is subject to a stamp tax in the sum
of one cent for each one hundred dollars of value of the property
sold or agreed to be sold. Bills of exchange are likewise taxed by
a graduated scale. Deeds or other instruments for the conveyance of
land are charged with a stamp tax of fifty cents for each five
hundred dollars of value of property conveyed. And so of others. It
is a well known fact that, under this graduated system, many
instruments are subject to stamp duties of large amount. No
question has ever been raised as to this power of graduating, and
if valid in the cases of bills of exchange, agreements of sale, or
conveyances of property, it is equally valid as to bills of lading.
The fact that Congress has not graduated the stamp tax on bills of
lading does not affect the question of power. By a graduated
system, although the tax is called a tax on "the vellum, parchment,
or paper" upon which transactions are written, or by which they are
evidenced, a burden may be cast upon exports sufficient to check or
retard them, and which will directly conflict with the
constitutional provision that no tax or duty shall be laid thereon.
The question of power is not to be determined by the amount of the
burden attempted to be cast. The constitutional language is "no tax
or duty." A ten-cent tax or duty is in conflict with that provision
as certainly as a one hundred-dollar tax or duty. Constitutional
mandates are imperative. The question is never one of amount, but
one of power. The
Page 181 U. S. 292
applicable maxim is "
obsta principiis," not, "
de
minimis non curat lex."
Counsel for the government, in his interpretation of the scope
and meaning of this constitutional limitation, says:
"To give Congress the power to lay a tax or duty 'on articles
exported from any state' meant to authorize inequality as among the
states in the matter of taxation. If the north happened in control
in Congress, it might tax the staples of the south; if the south
were in power, it might place a duty on the exports of the north.
As a part, therefore, of the great compromise between the north and
the south, this clause was inserted in the Constitution. The
prohibition was applied not to the taxing of the act of exportation
or the document evidencing the receipt of goods for export, for
these exist with substantial uniformity throughout the country, but
to the laying of a tax or duty on the articles exported, for these
could not be taxed without discriminating against some states and
in favor of other."
This argument does not commend itself to our judgment. Its
implication is that the sole purpose of this constitutional
restriction was to prevent discrimination between the states by
imposing an export tax on certain articles which might be a product
of only a few of the states, and which should be enforced only so
far as necessary to prevent such discrimination. If mere
discrimination between the states was all that was contemplated, it
would seem to follow that an
ad valorem tax upon all
exports would not be obnoxious to this constitutional prohibition.
But surely, under this limitation, Congress can impose an export
tax neither on one article of export nor on all articles of export.
In other words, the purpose of the restriction is that exportation
-- all exportation -- shall be free from national burden. This
intent, although obvious from the language of the clause itself, is
reinforced by the fact that, in the constitutional convention, Mr.
Clymer moved to insert after the word "duty" the words "for the
purpose of revenue," but the motion was voted down. So it is clear
that the framers of the Constitution intended not merely that
exports should not be made a source of revenue to the national
government, but that the
Page 181 U. S. 293
national government should put nothing in the way of burden upon
such exports. If all exports must be free from national tax or
duty, such freedom requires not simply an omission of a tax upon
the articles exported, but also a freedom from any tax which
directly burdens the exportation, and, as we have shown, a stamp
tax on a bill of lading, which evidences the export, is just as
clearly a burden on the exportation as a direct tax on the article
mentioned in the bill of lading as the subject of the export.
In
Nicol v. Ames, 173 U. S. 509, we
had occasion to consider this very act in reference to another
stamp duty required by the same schedule "A," to-wit, the
clause:
"Upon each sale, agreement of sale, or agreement to sell any
products or merchandise at any exchange, or board of trade, or
other similar place, either for present or future delivery, for
each one hundred dollars in value of said sale or agreement of sale
or agreement to sell, one cent, and for each additional one hundred
dollars, or fractional part thereof in excess of one hundred
dollars, one cent."
We sustained that tax as a tax upon the privilege or facilities
obtained by dealings on exchange, saying (p.
173 U. S.
521):
"A tax upon the privilege of selling property at the exchange,
and of thus using the facilities there offered in accomplishing the
sale, differs radically from a tax upon every sale made in any
place. The latter tax is really and practically upon property."
If it be true that a stamp tax required upon every instrument
evidencing a sale is really and practically a tax upon the property
sold, it is equally clear that a stamp duty upon foreign bills of
lading is a tax upon the articles exported.
These considerations find ample support in prior adjudications
of this Court. Thus, in
Almy v.
California, 24 How. 169,
65 U. S. 174,
it appeared that the State of California had imposed a stamp tax on
bills of lading for gold or silver shipped to any place outside of
the state, and the contention was that such stamp tax was not a tax
on the goods themselves, but the Court said:
"But a tax or duty on a bill of lading, although differing
in
Page 181 U. S. 294
form from a duty on the article shipped, is in substance the
same thing, for a bill of lading, or some written instrument of the
same import, is necessarily always associated with every shipment
of articles of commerce from the ports of one country to those of
another. The necessities of commerce require it. And it is hardly
less necessary to the existence of such commerce than casks to
cover tobacco, or bagging to cover cotton, when such articles are
exported to a foreign country, for no one would put his property in
the hands of a ship master without taking written evidence of its
receipt on board the vessel, and the purposes for which it was
placed in his hands. The merchant could not send an agent with
every vessel to inform the consignee of the cargo what articles he
had shipped, and prove the contract of the master if he failed to
deliver them in safety. A bill of lading, therefore, or some
equivalent instrument of writing, is invariably associated with
every cargo of merchandise exported to a foreign country, and
consequently a duty upon that is, in substance and effect, a duty
on the article exported."
It is true that thereafter, in
Woodruff
v. Parham, 8 Wall. 123, it was held that the words
"imports" and "exports," as used in the Constitution, were used to
define the shipment of articles between this and a foreign country,
and not that between the states, and while therefore that case is
no longer an authority as to what is or what is not an export, the
proposition that a stamp duty on a bill of lading is in effect a
duty on the article transported remains unaffected. In other words,
that decision affirms the great principle that what cannot be done
directly because of constitutional restriction cannot be
accomplished indirectly by legislation which accomplishes the same
result. But that principle is not dependent alone upon the case
cited. It was recognized long anterior thereto, in
Brown v.
Maryland, 12 Wheat. 419. In that case, it appeared
that the State of Maryland, in order to raise a revenue for state
purposes, required all importers of certain foreign articles to
take out a license before they were authorized to sell the goods so
imported, and it was held that such license tax, although in form a
tax upon the person importing, for the privilege of selling
Page 181 U. S. 295
the goods imported, was in fact a tax on imports, and that the
mode of imposing it by giving it the form of a tax on the
occupation of importer merely varied the form without changing the
substance. The argument in the opinion in that case, announced by
Chief Justice Marshall, remains unanswered. As the states cannot
directly interfere with the freedom of imports, they cannot by any
form of taxation, although not directly on the importation,
restrict such freedom, Congress alone having the power to prescribe
duties therefor. In like manner, the freedom of exportation being
guaranteed by the Constitution, it cannot be disturbed by any form
of legislation which burdens that exportation. The form in which
the burden is imposed cannot vary the substance. In the course of
his argument, Chief Justice Marshall used this illustration:
"All must perceive that a tax on the sale of an article imported
only for sale is a tax on the article itself. It is true the state
may tax occupations generally, but this tax must be paid by those
who employ the individual, or is a tax on his business. The lawyer,
the physician, or the mechanic must either charge more on the
article in which he deals or the thing itself is taxed through his
person. This the state has a right to do, because no constitutional
prohibition extends to it. So a tax on the occupation of an
importer is, in like manner, a tax on importation. It must add to
the price of the article, and be paid by the consumer or by the
importer himself, in like manner as a direct duty on the article
itself would be made. This the state has not the right to do,
because it is prohibited by the Constitution."
P.
25 U. S.
444.
The first clause of Section 8 of Article I of the Constitution
gives to Congress "power to lay and collect taxes, duties, imposts,
and excises." Were this the only constitutional provision in
respect to the matter of taxation, there would be no doubt that,
tried by the settled rules of constitutional interpretation,
Congress would have full power and full discretion as to both
objects and modes of taxation. But there are also expressed in the
same instrument three limitations. As said by Chief Justice Chase
in the
License Tax
Cases, 5 Wall. 462,
72 U. S.
471:
"It is true that the power of Congress to tax is a very
extensive
Page 181 U. S. 296
power. It is given in the Constitution with only one exception
and only two qualifications. Congress cannot tax exports, and it
must impose direct taxes by the rule of apportionment, and indirect
taxes by the rule of uniformity. Thus limited, and thus only, it
reaches every subject, and may be exercised at discretion."
This proposition is restated by counsel for government at the
commencement of his argument, and is undoubtedly correct. We have
hitherto had occasion to consider the two qualifications -- the
one, that direct taxes must be imposed by the rule of apportionment
and the other that indirect taxes shall be uniform throughout the
United States. In the
Income Tax cases, Pollock v. Farmers'
Loan & Trust Co., 157 U. S. 429,
158 U. S. 601, the
constitutional provision as to the apportionment of direct taxes
was elaborately considered, and it was held that a tax on the
income made up of the rents of real estate, and one on the income
from personal property, were substantially direct taxes on the real
estate and the personalty. In the first of these cases, on page
157 U. S. 581,
discussing the principles of constitutional construction, the Chief
Justice said:
"If it be true that, by varying the form, the substance may be
changed, it is not easy to see that anything would remain of the
limitations of the Constitution, or of the rule of taxation and
representation, so carefully recognized and guarded in favor of the
citizens of each state. But constitutional provisions cannot be
thus evaded. It is the substance, and not the form, which controls,
as has indeed been established by repeated decisions of this Court.
Thus, in
Brown v. Maryland, 12 Wheat.
419,
25 U. S. 444, it was held
that the tax on the occupation of an importer was the same as a tax
on imports, and therefore void. And Chief Justice Marshall
said:"
"It is impossible to conceal from ourselves that this is varying
the form without varying the substance. It is treating a
prohibition which is general as if it were confined to a particular
mode of doing the forbidden thing. All must perceive that a tax on
the sale of an article imported only for sale is a tax on the
article itself."
"In
Weston v. Charleston, 2 Pet.
449, it was held that a tax on the income of United States
securities was a tax on the
Page 181 U. S. 297
securities themselves, and equally inadmissible. The ordinance
of the City of Charleston involved in that case was exceedingly
obscure, but the opinions of Mr. Justice Thompson and Mr. Justice
Johnson, who dissented, make it clear that the levy was upon the
interest of the bonds, and not upon the bonds, and they held that
it was an income tax, and as such sustainable; but the majority of
the Court, Chief Justice Marshall delivering the opinion, overruled
that contention."
"So in
Dobbins v. Erie County
Commissioners, 16 Pet. 435, it was decided that the
income from an official position could not be taxed if the office
itself was exempt."
"In
Almy v. California, 24 How.
169, it was held that a duty on a bill of lading was the same thing
as a duty on the article which it represented; in
Railroad Co. v.
Jackson, 7 Wall. 262, that a tax upon the interest
payable on bonds was a tax, not upon the debtor, but upon the
security, and in
Cook v. Pennsylvania, 97 U. S.
566, that a tax upon the amount of sales of goods made
by an auctioneer was a tax upon the goods sold."
"In
Philadelphia Steamship Co. v. Pennsylvania,
122 U. S.
326, and
Leloup v. Mobile, 127 U. S.
640, it was held that a tax on income received from
interstate commerce was a tax upon the interstate commerce itself,
and therefore unauthorized. And so, although it is thoroughly
settled that where, by way of duties laid on the transportation of
the subjects of interstate commerce and on the receipts derived
therefrom, or on the occupation or business of carrying it on, a
tax is levied by a state on interstate commerce, such taxation
amounts to a regulation of such commerce, and cannot be sustained,
yet the property in a state belonging to a corporation, whether
foreign or domestic, engaged in foreign or domestic commerce may be
taxed, and when the tax is substantially a mere tax on property,
and not one imposed on the privilege of doing interstate commerce,
the exaction may be sustained. 'The substance, and not the shadow,
determines the validity of the exercise of the power.'
Postal
Telegraph Co. v. Adams, 155 U. S. 688,
155 U. S.
698."
In
Knowlton v. Moore, 178 U. S. 41, we
considered the qualification in the matter of uniformity. The
question presented was the validity of the inheritance tax imposed
by the Act of
Page 181 U. S. 298
June 13, 1898. 30 Stat. 448. After showing that the tax was not
a direct tax within the constitutional meaning of the term, we
examined the objection that it was not uniform throughout the
United States, and, after full consideration, held that the
uniformity required was a geographical, and not an intrinsic,
uniformity, and was synonymous with the expression "to operate
generally throughout the United States." While upon some of the
questions in that case there was a difference of opinion, yet
concerning the construction of the uniformity clause, the Justices
who took part in the decision were agreed. After discussing the
construction of the uniformity clause, MR. JUSTICE WHITE, speaking
for the Court, proceeded to show that the tax in question did not
violate such uniformity. There was no suggestion that the
qualification could be disregarded or limited in any legislation;
the opinion proceeded upon the assumption that the uniformity
provision was an absolute restriction on the power of Congress, and
the argument was to demonstrate that the tax in question in no
manner conflicted with either the letter or spirit of such
restriction. If it had been in the mind of the Court that such
restriction as to uniformity could be evaded by a mere change in
the form of legislation, the opinion could have been less elaborate
and the difficulties of the case largely avoided.
We have referred to these cases for the purpose of showing that
the rule of construction of grants of powers has been also applied
when the question was as to restrictions and limitations. Other
cases may also well be referred to in this connection.
In
Robbins v. Shelby County Taxing District,
120 U. S. 489, the
question presented was whether an act of the State of Tennessee
requiring
"all drummers and all persons not having a regular licensed
house of business in the taxing district of Shelby County offering
for sale or selling goods, wares, or merchandise therein by
sample,"
to pay a certain tax to the county trustee could be enforced as
to those drummers who were engaged simply in soliciting business in
the State of Tennessee in behalf of citizens of other states. It
was held that it could not, that such act of solicitation, being a
matter of interstate commerce, was therefore beyond the power of
the state to
Page 181 U. S. 299
regulate. In the opinion, Mr. Justice Bradley, speaking for the
Court, said:
"In view of these fundamental principles which are to govern our
decision, we may approach the question submitted to us in the
present case, and inquire whether it is competent for a state to
levy a tax or impose any other restriction upon the citizens or
inhabitants of other states for selling or seeking to sell their
goods in such state before they are introduced therein. Do not such
restrictions affect the very foundation of interstate trade? How is
a manufacturer or a merchant of one state to sell his goods in
another state without in some way obtaining orders therefor? Must
he be compelled to send them at a venture, without knowing whether
there is any demand for them? This may undoubtedly be safely done
with regard to some products for which there is always a market and
a demand, or where the course of trade has established a general
and unlimited demand. A raiser of farm produce in New Jersey or
Connecticut or a manufacturer of leather or woodenware, may perhaps
safely take his goods to the City of New York and be sure of
finding a stable and reliable market for them. But there are
hundreds, perhaps thousands, of articles which no person would
think of exporting to another state without first procuring an
order for them. It is true, a merchant or manufacturer in one state
may erect or hire a warehouse or store in another state, in which
to place his goods, and await the chances of being able to sell
them. But this would require a warehouse or store in every state
with which he might desire to trade. Surely he cannot be compelled
to take this inconvenient and expensive course. In certain branches
of business, it may be adopted with advantage. Many manufacturers
do open houses or places of business in other states than those in
which they reside, and send their goods there to be kept on sale.
But this is a matter of convenience, and not of compulsion, and
would neither suit the convenience nor be within the ability of
many others engaged in the same kind of business, and would be
entirely unsuited to many branches of business. In these cases,
then, what shall the merchant or manufacturer do who wishes to sell
his goods in other states?
Page 181 U. S. 300
Must he sit still in his factory or warehouse and wait for the
people of those states to come to him? This would be a silly and
ruinous proceeding."
"The only other way, and the one perhaps which most extensively
prevails, is to obtain orders from persons residing or doing
business in those other states. But how is the merchant or
manufacturer to secure such orders? If he may be taxed by such
states for doing so, who shall limit the tax? It may amount to
prohibition. To say that such a tax is not a burden upon interstate
commerce is to speak at least unadvisedly and without due attention
to the truth of things."
P.
120 U. S.
494.
The scope of this argument is that, inasmuch as interstate
commerce can only be regulated by Congress, and is free from state
interference, state legislation, although not directly prohibiting
interstate commerce, if in substance and effect directly casting a
burden thereon, cannot be sustained. Or, in other words,
constitutional provisions, whether operating by way of grant or
limitation, are to be enforced according to their letter and
spirit, and cannot be evaded by any legislation which, though not
in terms trespassing on the letter, yet in substance and effect
destroy the grant or limitation.
In
Monongahela Navigation Co. v. United States,
148 U. S. 312, it
appeared that Congress had passed an act authorizing the
condemnation of a lock and dam known as the upper lock and dam on
the Monongahela River, belonging to the navigation company, with a
proviso "that, in estimating the sum to be paid by the United
States, the franchise of said corporation to collect tolls shall
not be considered or estimated," the idea being that simply the
value of the tangible property was all that need be paid for, and
it was held that such proviso could not be sustained; that, while
the right of condemnation was clear, it was limited by the clause
in the Fifth Amendment, "nor shall private property be taken for
public use without just compensation," and that that language
required payment of the entire value of the property of which the
owner was deprived, the Court saying:
"Congress has supreme control over the regulation of commerce,
but if, in exercising that supreme control, it deems it
Page 181 U. S. 301
necessary to take private property, then it must proceed subject
to the limitations imposed by this Fifth Amendment, and can take
only on payment of just compensation. The power to regulate
commerce is not given in any broader terms than that to establish
post offices and post roads, but if Congress wishes to take private
property upon which to build a post office, it must either agree
upon a price with the owner, or in condemnation pay just
compensation therefor. And if that property be improved under
authority of a charter granted by the state, with a franchise to
take tolls for the use of the improvement, in order to determine
the just compensation, such franchise must be taken into account.
Because Congress has power to take the property, it does not follow
that it may destroy the franchise without compensation. Whatever be
the true value of that which it takes from the individual owner
must be paid to him before it can be said that just compensation
for the property has been made. And that which is true in respect
to a condemnation of property for a post office is equally true
when condemnation is sought for the purpose of improving a natural
highway. Suppose, in the improvement of a navigable stream, it was
deemed essential to construct a canal with locks, in order to pass
around rapids or falls. Of the power of Congress to condemn
whatever land may be necessary for such canal there can be no
question, and of the equal necessity of paying full compensation
for all private property taken there can be as little doubt. If a
man's house must be taken, that must be paid for, and if the
property is held and improved under a franchise from the state,
with power to take tolls, that franchise must be paid for, because
it is a substantial element in the value of the property taken. So,
coming to the case before us, while the power of Congress to take
this property is unquestionable, yet the power to take is subject
to the constitutional limitation of just compensation."
P.
148 U. S.
336.
In short, the Court held in that case that Congress could not,
by any declaration in its statute, avoid, qualify, or limit the
special restriction placed upon its power, but that it must be
enforced according to its letter and spirit and to the full
extent.
In
Boyd v. United States, 116 U.
S. 616, the fifth section of
Page 181 U. S. 302
the Act of June 22, 1874, 18 Stat. 186, which authorized a court
of the United States in revenue cases, on motion of the district
attorney, to require the defendant or the claimant to produce in
court his private books, invoices, and papers, or else that the
allegations of the attorney as to their contents should be taken as
confessed, was held unconstitutional and void as applied to an
action for penalties or to establish a forfeiture of the party's
goods because repugnant to the Fourth and Fifth Amendments to the
Constitution. The case is significant, for the statute was not so
much in conflict with the letter as with the spirit of the
restrictive clauses of those Amendments, and in respect to this,
the Court said:
"Though the proceeding in question is divested of many of the
aggravating incidents of actual search and seizure, yet, as before
said, it contains their substance and essence, and effects their
substantial purpose. It may be that it is the obnoxious thing in
its mildest and least repulsive form, but illegitimate and
unconstitutional practices get their first footing in that way --
namely, by silent approaches and slight deviations from legal modes
of procedure. This can only be obviated by adhering to the rule
that constitutional provisions for the security of person and
property should be liberally construed. A close and literal
construction deprives them of half their efficacy, and leads to
gradual depreciation of the right, as if it consisted more in sound
than in substance. It is the duty of courts to be watchful for the
constitutional rights of the citizen, and against any stealthy
encroachments thereon. Their motto should be
obsta
principiis."
P.
116 U. S.
635.
On the other hand,
Pace v. Burgess, 92 U. S.
372, is cited as an authority against these conclusions;
but an examination of the case shows that this is a mistake. The
act of 1868, 15 Stat. 125, imposed certain taxes on the manufacture
of tobacco for consumption or use, required as evidence of the
payment of such taxes the affixing of revenue stamps to the
packages, and forbade the removal of any tobacco from the factory
without payment of the taxes and affixing of the stamps. It further
provided that tobacco might be manufactured for export and exported
without payment of any tax. Sections 73
Page 181 U. S. 303
and 74, page 157, are the sections making provision for such
export, and authorized the removal of the tobacco from the
manufactory to certain designated warehouses at ports of entry upon
the giving of suitable bonds. The latter part of section 74
reads:
"All tobacco and snuff intended for export, before being removed
from the manufactory, shall have affixed to each package an
engraved stamp indicative of such intention, to be provided and
furnished to the several collectors, as in the case of other
stamps, and to be charged to them and accounted for in the same
manner, and for the expense attending the providing and affixing
such stamps, twenty-five cents for each package so stamped shall be
paid to the collector on making the entry for such
transportation."
This act was amended in 1872, 17 Stat. 230, the amendments to
sections 73 and 74 being found on page 254, but they have no
significance in respect to the present question. Now it was the
cost of those removal stamps which was complained of as in conflict
with the constitutional provision against a tax or duty upon
exports, but the contention was overruled, the Court saying (pp.
92 U. S.
374-376):
"The plaintiff contends that the charge for the stamps required
to be placed on packages of manufactured tobacco intended for
exportation was and is a duty on exports, within the meaning of
that clause in the Constitution of the United States which declares
that 'no tax or duty shall be laid on articles exported from any
state.' But it is manifest that such was not its character or
object. The stamp was intended for no other purpose than to
separate and identify the tobacco which the manufacturer desired to
export, and thereby, instead of taxing it, to relieve it from the
taxation to which other tobacco was subjected. It was a means
devised to prevent fraud and secure the faithful carrying out of
the declared intent with regard to the tobacco so marked. . . . We
know how next to impossible it is to prevent fraudulent practices
wherever the internal revenue is concerned, and the pretext of
intending to export such an article as manufactured tobacco would
open the widest door to such practices if the greatest strictness
and precaution
Page 181 U. S. 304
were not observed. The proper fees accruing in the due
administration of the laws and regulations necessary to be observed
to protect the government from imposition and fraud likely to be
committed under pretense of exportation are in no sense a duty on
exportation. They are simply the compensation given for services
properly rendered. The rule by which they are estimated may be an
arbitrary one, but an arbitrary rule may be more convenient and
less onerous than any other which can be adopted. The point to
guard against is the imposition of a duty under the pretext of
fixing a fee. In the case under consideration, having due regard to
that latitude of discretion which the legislature is entitled to
exercise in the selection of the means for attaining a
constitutional object, we cannot say that the charge imposed is
excessive, or that it amounts to an infringement of the
constitutional provision referred to. We cannot say that it is a
tax or duty instead of what it purports to be, a fee or charge for
the employment of that instrumentality which the circumstances of
the case render necessary for the protection of the
government."
"One cause of difficulty in the case arises from the use of
stamps as one of the means of segregating and identifying the
property intended to be exported. It is the form in which many
taxes and duties are imposed and liquidated, stamps being seldom
used except for the purpose of levying a duty or tax. But we must
regard things, rather than names. A stamp may be used, and, in the
case before us we think it is used, for quite a different purpose
from that of imposing a tax or duty; indeed, it is used for the
very contrary purpose -- that of securing exemption from a tax or
duty. The stamps required by recent laws to be affixed to all
agreements, documents, and papers, and to different articles of
manufacture, were really and in truth taxes and duties, or
evidences of the payment of taxes and duties, and were intended as
such. The stamp required to be placed on gold dust exported from
California by a law of that state was clearly an export tax, as
this Court decided in the case of
Almy v.
California, 24 How. 169. In all such cases, no one
could entertain a reasonable doubt on the subject. "
Page 181 U. S. 305
Obviously, this opinion, taken as a whole, makes against, rather
than in favor of, the contention of counsel for the government. Its
argument is to the effect that the stamp required was in no proper
sense a tax for revenue; that there was no burden of any kind on
the export; that it was something to facilitate, rather than to
hinder, exports; that it was only a means of identification and to
enable parties to remove their tobacco from the manufactory to the
warehouse, and that the sum demanded was simply a matter of
compensation for services rendered. The statute itself declared
that the twenty-five cents was to be paid "for the expense
attending the providing and affixing" of the stamps. This clearly
excludes the idea that any tax or duty was intended to be imposed,
and the opinion notes the fact that the difficulty arises because
ordinarily stamps are used for the purpose of duty or tax, says
that we must always regard things, rather than names, and that this
stamp was not used for the purpose of tax or duty, but only for
identification and to prevent frauds on the government. If it had
been supposed that a stamp tax could properly be charged, the line
of argument would have been entirely different. In the case before
us, the stamp is distinctly for the purpose of revenue, and not by
way of compensation for services rendered, so that the question is
whether revenue can be collected from exports by changing the form
of the tax from a tax on the article exported to a tax on the bill
of lading which evidences the export.
Again, it is said that, if this stamp duty on foreign bills of
lading cannot be sustained, it will follow that tonnage taxes and
stamp duties on manifests must also fall. The validity of such
taxes is not before us for determination, and therefore we must
decline to express any opinion thereon, and yet it may be not
improper to say that, even if the suggested result should follow,
it furnishes no reason for not recognizing that which, in our
judgment, is the true construction of the constitutional
limitation. Mingling in one statute two or three unconstitutional
taxes cannot be held operative to validate either one, and if the
reasoning we have stated and followed in reaching the conclusion in
this case shall also lead to the result that such taxes are
Page 181 U. S. 306
invalid, it of itself does not weaken the force of the reasoning
or justify us in departing from its conclusions. But we may be
permitted to suggest, without deciding, that there may be a valid
difference as indicated by the decisions of this Court in respect
to interstate commerce. It has been distinctly held that no state
could, by a license or otherwise, impose a burden on the business
of interstate commerce.
Pickard v. Pullman Southern Car
Co., 117 U. S. 34, and
cases cited in the opinion. And yet that decision was followed by
decisions that it might tax the vehicles and property employed in
interstate commerce so long and so far as they were a part of the
property of the state.
Pullman's Palace Car Co. v.
Pennsylvania, 141 U. S. 18, and
cases cited in the opinion. This difference may have significance
in respect to these other taxes. As heretofore said, we do not
decide the question, but only make these suggestions to indicate
that the matter has been considered.
Another matter pressed upon our attention which deserves and has
received careful consideration is the practical construction of
this constitutional provision by legislative action. On July 6,
1797, an act was passed entitled, "An Act Laying Duties on Stamped
Vellum, Parchment, and Paper" (1 Stat. 527), which contained this
clause:
"Any note or bill of lading, for any goods or merchandise to be
exported, if from one district to another district of the United
States, not being in the same state, ten cents; if to be exported
to any foreign port or place, twenty-five cents,"
etc. p. 528.
This was changed by the Act of February 28, 1799, 1 Stat. 622,
but only as to the amount. On April 6, 1802, 2 Stat. 148, a
repealing act was passed. Again, on July 1, 1862, 12 Stat. 432, a
similar stamp duty was imposed on foreign bills of lading, which
was continued by the Act of June 30, 1864, 13 Stat. 218, 291,
finally repealed by the Act of June 6, 1872, 17 Stat. 230, 256, and
then followed the act in question. In
Knowlton v. Moore,
178 U. S. 41, in
which the inheritance tax was considered, the significance of this
practical construction by legislative action was referred to, and
on pages
178 U. S. 56-57,
we said:
"The act of 1797, which ordained legacy taxes, was adopted
Page 181 U. S. 307
at a time when the founders of our government and framers of our
Constitution were actively participating in public affairs, thus
giving a practical construction to the Constitution which they had
helped to establish. Even the then, members of the Congress who had
not been delegates to the convention which framed the Constitution
must have had a keen appreciation of the influences which had
shaped the Constitution and the restrictions which it embodied,
since all questions which related to the Constitution and its
adoption must have been at that early date vividly impressed on
their minds. It would under these conditions be indeed surprising
if a tax should have been levied without question upon objects
deemed to be beyond the grasp of Congress because exclusively
within state authority. It is moreover worthy of remark that
similar taxes have at other periods and for a considerable time
been enforced, and although their constitutionality was assailed on
other grounds held unsound by this Court, the question of the want
of authority of Congress to levy a tax on inheritances and legacies
was never urged against the acts in question."
And again, when the construction of the uniformity clause was
being considered (p.
178 U. S.
92):
"But one of the most satisfactory answers to the argument that
the uniformity required by the Constitution is the same as the
equal and uniform clause which has since been embodied in so many
of the state constitutions, results from a review of the practice
under the Constitution from the beginning. From the very first
Congress down to the present date, in laying duties, imposts, and
excises, the rule of inherent uniformity, or, in other words,
intrinsically equal and uniform taxes, has been disregarded, and
the principle of geographical uniformity consistently
enforced."
That was not the first case in which this matter has been
considered by this Court. On the contrary, it has been often
presented. See in the margin a partial list of cases in which the
subject has been discussed.
* And examination
of the opinions
Page 181 U. S. 308
in those cases will disclose that they may be grouped in three
classes: first, those in which the court, after seeking to
demonstrate the validity or the true construction of a statute, has
added that, if there were doubt in reference thereto, the practical
construction placed by Congress or the department charged with the
execution of the statute was sufficient to remove the doubt;
second, those in which the court has either stated or assumed that
the question was doubtful, and has rested its determination upon
the fact of a long continued construction by the officials charged
with the execution of the statute; and, third, those in which the
court, noticing the fact of a long continued construction, has
distinctly affirmed that such construction cannot control when
there is no doubt as to the true meaning of the statute.
The first class is illustrated by
Cohen v.
Virginia, 6 Wheat. 264. There, the question
presented was the jurisdiction of this Court over proceedings by
indictment in a state court for a violation of a state statute. In
an elaborate argument, Chief Justice Marshall sustained the
jurisdiction, and then added (p.
19 U. S.
418):
"Great weight has always been attached, and very rightly
attached, to contemporaneous exposition. No question, it is
Page 181 U. S. 309
believed, has arisen to which this principle applies more
unequivocally than to that now under consideration."
And in support of that referred to the writings in The
Federalist, which were presented before the adoption of the
Constitution, and were generally recognized as powerful arguments
in its favor; also to the Judiciary Act of 1789, 1 Stat. 73, the
decisions of this Court, and the assent of the courts of several
states thereto, saying (p.
19 U. S. 421):
"This concurrence of statesmen, of legislators, and of judges in
the same construction of the Constitution may justly inspire some
confidence in that construction."
Again, in
United States v. State Bank of
North Carolina, 6 Pet. 29,
31 U. S. 39, Mr.
Justice Story, in like manner, said:
"It is not unimportant to state that the construction which we
have given to the terms of the act is that which is understood to
have been practically acted upon by the government, as well as by
individuals, ever since its enactment. Many estates, as well of
deceased persons, as of persons insolvent who have made general
assignments, have been settled upon the footing of its correctness.
A practice so long and so general would, of itself, furnish strong
grounds for a liberal construction, and could not now be disturbed
without introducing a train of serious mischiefs. We think the
practice was founded in the true exposition of the terms and intent
of the act, but if it were susceptible of some doubt, so long an
acquiescence in it would justify us in yielding to it as a safe and
reasonable exposition."
In the second class may be placed
Stuart v.
Laird, 1 Cranch 299;
Burrow-Giles Lithographic
Co. v. Sarony, 111 U. S. 53, in
which last case Mr. Justice Miller, speaking for the Court, used
this language (p.
111 U. S.
57):
"The construction placed upon the Constitution by the first act
of 1790, and the act of 1802, by the men who were contemporary with
its formation, many of whom were members of the convention which
framed it, is of itself entitled to very great weight, and when it
is remembered that the rights thus established have not been
disputed during a period of nearly a century, it is almost
conclusive."
See also The Laura, 114 U. S. 411;
United States v.
Philbrick,
Page 181 U. S. 310
120 U. S. 52,
120 U. S. 59;
United States v. Hill, 120 U. S. 169,
120 U. S. 182;
Robertson v. Downing, 127 U. S. 607,
127 U. S. 613,
and
Schell v. Fauche, 138 U. S. 562,
138 U. S. 572,
in which it was said:
"In all cases of ambiguity, the contemporaneous construction not
only of the courts, but of the departments, and even of the
officials whose duty it is to carry the law into effect is
universally held to be controlling."
The third class is the largest. While the language used by the
several Justices announcing the opinions in these cases is not the
same, the thought is alike. Thus, in
Swift Company v. United
States, 105 U. S. 691,
105 U. S. 695,
Mr. Justice Matthews said:
"The rule which gives determining weight to contemporaneous
construction put upon a statute by those charged with its execution
applies only in cases of ambiguity and doubt."
In
United States v. Graham, 110 U.
S. 219,
110 U. S. 221,
Chief Justice Waite thus stated the law:
"Such being the case, it matters not what the practice of the
departments may have been or how long continued, for it can only be
resorted to in aid of interpretation, and 'it is not allowable to
interpret what has no need of interpretation.' If there were
ambiguity or doubt, then such a practice, begun so early and
continued so long, would be in the highest degree persuasive, if
not absolutely controlling in its effect. But with language clear
and precise, and with its meaning evident, there is no room for
construction, and consequently no need of anything to give it aid.
The cases to this effect are numerous."
In
United States v. Tanner, 147 U.
S. 661,
147 U. S. 663,
it was said by MR. JUSTICE BROWN:
"If it were a question of doubt, the construction given to this
clause prior to October, 1885, might be decisive; but, as it is
clear to us that this construction was erroneous, we think it is
not too late to overrule it.
United States v. Graham,
110 U. S.
219;
Swift Company v. United States,
105 U. S.
691. It is only in cases of doubt that the construction
given to an act by the department charged with the duty of
enforcing it becomes material."
In
United States v. Alger, 152 U.
S. 384,
152 U. S. 397,
MR. JUSTICE GRAY used this language:
Page 181 U. S. 311
"If the meaning of that act were doubtful, its practical
construction by the Navy Department would be entitled to great
weight. But as the meaning of the statute, as applied to these
cases, appears to this Court to be perfectly clear, no practice
inconsistent with that meaning can have any effect."
In
Webster v. Luther, 163 U. S. 331,
163 U. S. 342, MR.
JUSTICE HARLAN stated the rule in these words:
"The practical construction given to an act of Congress fairly
susceptible of different constructions, by one of the executive
departments of the government, is always entitled to the highest
respect, and in doubtful cases should be followed by the courts,
especially when important interests have grown up under the
practice adopted.
Bate Refrigerating Co. v. Sulzberger,
157 U. S.
1,
157 U. S. 34;
United States
v. Healey, 160 U. S. 136,
160 U. S.
141. But this Court has often said that it will not
permit the practice of an executive department to defeat the
obvious purpose of a statute."
From this resume of our decisions, it clearly appears that
practical construction is relied upon only in cases of doubt. We
have referred to it when the construction seemed to be
demonstrable, but then only in response to doubts suggested by
counsel. Where there was obviously a matter of doubt, we have
yielded assent to the construction placed by those having actual
charge of the execution of the statute, but where there was no
doubt, we have steadfastly declined to recognize any force in
practical construction. Thus, before any appeal can be made to
practical construction, it must appear that the true meaning is
doubtful.
We have no disposition to belittle the significance of this
matter. It is always entitled to careful consideration, and in
doubtful cases will, as we have shown, often turn the scale; but
when the meaning and scope of a constitutional provision are clear,
it cannot be overthrown by legislative action, although several
times repeated and never before challenged. It will be perceived
that these stamp duties have been in force during only three
periods: first, from 1797 to 1802; second, from 1862 to 1872; and,
third, commencing with the recent statute of 1898. It must be borne
in mind also in respect to this matter
Page 181 U. S. 312
that during the first period, exports were limited and the
amount of the stamp duty was small, and that during the second
period, we were passing through the stress of a great civil war, or
endeavoring to carry its enormous debt, so that it is not strange
that the legislative action in this respect passed unchallenged.
Indeed, it is only of late years, when the burdens of taxation are
increasing by reason of the great expenses of government, that the
objects and modes of taxation have become a matter of special
scrutiny. But the delay in presenting these questions is no excuse
for not giving them full consideration and determining them in
accordance with the true meaning of the Constitution.
Without enlarging further on these matters, we are of opinion
that a stamp tax on a foreign bill of lading is in substance and
effect equivalent to a tax on the articles included in that bill of
lading, and therefore a tax or duty on exports, and in conflict
with the constitutional prohibition. The judgment of the district
court will be reversed, and the case remanded, with instructions to
grant a new trial.
*
Stuart v.
Laird, 1 Cranch 299;
Martin v.
Hunter's Lessee, 1 Wheat. 304,
14 U. S. 351;
Cohen v.
Virginia, 6 Wheat. 264,
19 U. S. 418;
Edwards' Lessee v.
Darby, 12 Wheat. 206,
25 U. S. 210;
United States v. Bank of North
Carolina, 6 Pet. 29,
31 U. S. 39;
United States v.
Macdaniel, 7 Pet. 1,
32 U. S. 15;
Prigg v.
Pennsylvania, 16 Pet. 539;
Union
Insurance Company v. Hoge, 21 How. 35,
62
U. S. 66;
United States v.
Alexander, 12 Wall. 177,
79 U. S. 181;
Peabody v.
Stark, 16 Wall. 240,
83 U. S. 243;
Dollar Savings Bank v. United
States, 19 Wall. 227,
86 U. S. 237;
Smythe v.
Fiske, 23 Wall. 374,
90 U. S. 382;
United States v. Moore, 95 U. S. 760,
95 U. S. 763;
Swift Company v. United States, 105 U.
S. 691,
105 U. S. 695;
Hahn v. United States, 107 U. S. 402,
107 U. S. 406;
United States v. Graham, 110 U. S. 219,
110 U. S. 221;
Burrow-Giles Lithographic Co. v. Sarony, 111 U. S.
53,
111 U. S. 57;
Brown v. United States, 113 U. S. 568,
113 U. S. 571;
Cooper Manufacturing Company v. Ferguson, 113 U.
S. 727,
113 U. S. 733;
The Laura, 114 U. S. 411,
114 U. S. 416;
United States v. Philbrick, 120 U. S.
52,
120 U. S. 59;
United States v. Hill, 120 U. S. 169,
120 U. S. 182;
United States v. Johnston, 124 U.
S. 236,
124 U. S. 253;
Robertson v. Downing, 127 U. S. 607,
127 U. S. 613;
Merritt v. Cameron, 137 U. S. 542,
137 U. S. 552;
Schell v. Fauche, 138 U. S. 562,
138 U. S. 570;
United States v. Alabama R. Co., 142 U.
S. 615,
142 U. S. 621;
McPherson v. Blacker, 146 U. S. 1;
United States v. Tanner, 147 U. S. 661,
147 U. S. 663;
United States v. Union Pacific Ry. Co., 148 U.
S. 562,
148 U. S. 572;
United States v. Alger, 152 U. S. 384,
152 U. S. 397;
Webster v. Luther, 163 U. S. 331,
163 U. S. 342;
Wisconsin Central R. Co. v. United States, 164 U.
S. 190,
164 U. S. 205;
Hewitt v. Schultz, 180 U. S. 139,
180 U. S.
156.
MR. JUSTICE HARLAN, with whom concurred MR. JUSTICE GRAY, MR.
JUSTICE WHITE and MR. JUSTICE McKENNA, dissenting:
By the Act of June 13th, 1898, c. 448, imposing certain stamp
duties, it was declared that there should be levied, collected, and
paid the sum of ten cents
"for and in respect of the vellum, parchment, or paper upon
which . . . shall be written or printed by any person or persons or
party who shall make, sign, or issue the same, or for whose use or
benefit the same shall be made, signed, or issued, . . . bills of
lading or receipt (other than charter party) for any goods,
merchandise, or effects to be exported from a port or place in the
United States to any foreign port or place. . . .
Provided, That the stamp duties imposed by the foregoing
schedule on manifests, bills of lading, and passage tickets shall
not apply to steamboats or other vessels plying between ports of
the United States and ports in British North America."
30 Stat. 448, 451, 458, 459, 462, §§ 6 and 24, schedule A.
Page 181 U. S. 313
It is contended that this stamp duty is forbidden by the clause
of the Constitution declaring that "no tax or duty shall be laid on
any articles exported from any state," Article I, Section 9, and
that the stamp duty here in question was, within the meaning of
that instrument, a tax or duty on the wheat received by the
Northern Pacific Railway Company to be carried from Minnesota to
Liverpool, and for which the company issued its bill of lading.
We are of opinion that this contention cannot be sustained
without departing from a rule of constitutional construction by
which this Court has been guided since the foundation of the
government. Let us see to what extent Congress has exercised the
power now held not to belong to it under the Constitution.
As early as July 6, 1797, Congress passed an act entitled "An
Act Laying Duties on Stamped Vellum, Parchment, and Paper." By the
first section of that act, it was provided that from and after the
31st day of December thereafter, there should be
"levied, collected, and paid throughout the United States the
several stamp duties following, to-wit: for every skin or piece of
vellum, or parchment, or sheet or piece of paper upon which shall
be written or printed any or either of the instruments or writings
following, to-wit: . . . any note or bill of lading for any goods
or merchandise . . . to be exported to any foreign port or place,
twenty-five cents."
1 Stat. 527, 528, c. 11, § 1. The same act provided:
"That if any person or persons shall write or print, or cause to
be written or printed, upon any unstamped vellum, parchment, or
paper (with intent fraudulently to evade the duties imposed by this
act), any of the matters and things for which the said vellum,
parchment, or paper is hereby charged to pay any duty, or shall
write or print, or cause to be written or printed, any matter or
thing upon any vellum, parchment, or paper that shall be marked or
stamped for any lower duty than the duty by this act payable, such
person so offending shall for every such offense forfeit the sum of
one hundred dollars."
1 Stat. 527, 528, c. 11, § 13.
By an Act approved December 15, 1797, c. 1, it was provided that
the duties prescribed by the Act of July 6, 1797, should be levied,
collected, and paid from and after June 30, 1798, and not before. 1
Stat. 536.
Page 181 U. S. 314
The above Act of July 6, 1797, was amended in certain
particulars by an Act approved March 19, 1798, c. 20, by which
certain provisions were made for furnishing the vellum, parchment,
or paper required by the former act to be stamped and marked. 1
Stat. 545.
It not having occurred to any of the great statesmen and jurists
who were connected with the early history of the government that
enactments such as that of July 6, 1797, violated the Constitution,
Congress passed another act on the 28th day of February, 1799, c.
17, imposing a duty of ten cents
"on every skin or piece of vellum or parchment or sheet or piece
of paper on which shall be written or printed any or either of the
instruments following, to-wit: . . . Any note or bill of lading, or
writing or receipt in the nature thereof, for any goods or
merchandise . . . to be exported to any foreign port or place."
1 Stat. 622.
Congress, still supposing that it was acting within the limits
of its powers under the Constitution, again, by the Act of April
23, 1800, c. 31, amended and extended that of July 6, 1797. By the
latter act, a general stamp office was established and provision
was made, among other things, for the punishment, by fine and
imprisonment, of those who, with the intent to defraud the United
States of any of the duties laid by the original act of 1797,
counterfeited or caused to be forged or counterfeited any vellum,
parchment, or paper provided for by Congress under that act. 2
Stat. 40, 42. The Act of April 23, 1800, was amended by an Act
passed March 3, 1801, c. 19, by which it was provided that deeds,
instruments or writings issued without being stamped could be
thereafter stamped and become valid and available as if they had
been originally stamped as required by law. 2 Stat. 109.
By an Act approved April 6, 1802, c. 19, internal duties on
"stamped vellum, parchment, and paper" were discontinued, for the
reason, doubtless, that the further imposition of such duties was
unnecessary. 2 Stat. 148.
As late as March 3, 1823, Congress passed a general statute in
execution of the Act of April 23, 1800, establishing a general
stamp office. 3 Stat. 779, c. 55.
By an Act approved July 1 1862, c. 119, Congress provided
Page 181 U. S. 315
that there should be levied, collected and paid a stamp duty of
ten cents "for or in respect of the vellum, parchment, or paper"
upon which was written or printed any
"bill of lading or receipt (other than charter party) for any
goods, merchandise, or effects to be exported from a port or place
in the United States to any foreign port or place."
12 Stat. 432, 475, 479, 480, §§ 94, 110. By the Act of June 30,
1864, c. 173, the stamp duties provided by the Act of July 1, 1862,
were continued in force until August 1, 1864, and it was provided
that from and after the latter date there should be levied,
collected and paid a stamp duty of ten cents "for and in respect of
the vellum, parchment, or paper upon which shall be written or
printed" any
"bill of lading or receipt (other than charter party) for any
goods, merchandise, or effects to be exported from a port or place
in the United States to any foreign port or place."
13 Stat. 223, 291, 292, 298, §§ 151, 170, schedule B. But by an
Act approved June 6, 1872, c. 315, all the taxes imposed under and
by virtue of schedule B of section 170 of the Act of June 30, 1864,
and the several acts amendatory thereof, were abrogated from and
after October 1, 1872, excepting only the tax of two cents on bank
checks, drafts, or orders. 17 Stat. 230, 256.
We have referred somewhat in detail to the above enactments for
the purpose of bringing out clearly the fact that stamp duties were
imposed specifically for and in respect of the vellum, parchment,
or paper upon which was written or printed a bill of lading for
goods or merchandise to be exported to foreign countries, and had
no reference to the kind, quality, or value of the property covered
by such bill of lading. Congress
ex industria declared in
each act that the tax was for and in respect of the vellum,
parchment, or paper upon which the bills of lading were written or
printed. This fact plainly distinguishes the present case from
Almy v.
California, 24 How. 169, which involves the
validity under the Constitution of the United States of a statute
of California passed April 26, 1858, imposing a stamp tax on bills
of lading for the transportation from that state, to any port or
place without the state, of any quantity of gold or silver coin, in
whole or in part, gold dust, or gold or silver in bars or other
form. This Court, after observing that
Page 181 U. S. 316
a tax laid on the gold or silver exported from California was
forbidden by the clause declaring that
"no state shall, without the consent of Congress, lay any
imposts or duties on imports or exports except what may be
absolutely necessary for executing its inspection laws,"
said:
"In the case now before the Court, the intention to tax the
exports of gold and silver in the form of a tax on the bill of
lading is too plain to be mistaken. The duty is imposed only upon
bills of lading of gold and silver, and not upon articles of any
other description. And we think it is impossible to assign a reason
for imposing the duty upon the one and not upon the other unless it
was intended to lay a tax on the gold and silver exported while all
other articles were exempted from the charge. If it was intended
merely as a stamp duty on a particular description of paper, the
bill of lading of any other cargo is in the same form, and executed
in the same manner and for the same purposes, as one for gold and
silver, and, so far as the instrument of writing was concerned,
there could hardly be a reason for taxing one and not the other. In
the judgment of this Court, the state tax in question is a duty
upon the export of gold and silver, and consequently repugnant to
the clause in the Constitution hereinbefore referred to."
This interpretation was demanded by the words of the statute of
California, which provided:
"The following duty or stamp tax is hereby imposed on every
sheet or piece of paper, parchment, or other material upon which
may be written, printed, engraved, or lithographed, or other means
of designation, of either of the following-described instruments,
to-wit: any bill of lading, contract, agreement, or obligation for
the transportation or conveyance from any point or place in this
state to any point or place without the limits of this state, of
any sum, amount, or quantity of gold or silver in bars or other
form, by or between any person or persons, firm or firms,
corporation or corporations, or other associations, either as
principal or agent, or attorney or consignee, or consignor, to-wit:
for one hundred dollars, thirty cents, and all sums over one
hundred dollars, a stamp tax or duty of one fifth of one percent
upon the amount or value thereof, the payment whereof to be
included in the bill of lading, contract, or agreement, or
obligation
Page 181 U. S. 317
for the transportation or conveyance thereof, as in this section
provided, having attached thereto or stamped thereon a stamp or
stamps expressing in value the amount of such tax duty,"
etc. Stat. Cal. 1858, p. 305; Stat. Cal. 1857, p. 304.
The difference between the California statute and the act of
Congress is manifest. By the former, the amount of the tax upon
bills of lading depended upon the value of the gold or silver
specified in them and exported, while the latter imposed a tax of
only ten cents on the vellum, parchment, or paper upon which was
written or printed a bill of lading for property to be exported,
without regard to its quantity or value. If Congress had graduated
the stamp duty according to the quantity or value of the articles
exported, there might have been ground for holding that the purpose
and the necessary result was to tax the property, and not the
vellum, parchment, or paper on which the bill of lading was written
or printed.
This rule of interpretation was recognized in
Pace v.
Burgess, 92 U. S. 372,
92 U. S. 375.
That case arose under the Act of July 20, 1868, c. 186, imposing
duties on distilled spirits and tobacco, and for other purposes,
and which provided that
"all tobacco and snuff intended for export, before being removed
from the manufactory, shall have affixed to each package an
engraved stamp indicative of such intention, to be provided and
furnished to the several collectors, as in the case of other
stamps, and to be charged to them and accounted for in the same
manner, and for the expense attending the providing and affixing
such stamps, twenty-five cents for each package so stamped shall be
paid to the collector on making the entry for such
transportation."
15 Stat. 125, 158, § 74. The contention was that the statute
imposed a tax or duty in violation of the constitutional
prohibition of taxes or duties "on any articles exported from any
state." Article I, Section 9. This Court overruled that contention
upon the ground that it was apparent from the statute that
"the stamp was intended for no other purpose than to separate
and identify the tobacco which the manufacturer desired to export,
and thereby, instead of taxing it, to relieve it from the taxation
to which other tobacco was subjected. It was a means devised to
prevent fraud and secure the faithful
Page 181 U. S. 318
carrying out of the declared intent with regard to the tobacco
so marked. The payment of twenty-five cents or of ten cents for the
stamp used was no more a tax on the export than was the fee for
clearing the vessel in which it was transported, or for making out
and certifying the manifest of the cargo."
The Court added -- and this is important in its bearing on the
case before us:
"It [the stamp] bore
no proportion whatever to the quantity
or value of the package on which it was affixed. These were
unlimited, except by the discretion of the exporter or the
convenience of handling. The large amount paid for such stamps by
the plaintiff only shows that he was carrying on an immense
business."
As in
Pace v. Burgess, so in the present case, the
stamp duty imposed was without any reference to the quantity or
value of the property.
In our judgment, the small stamp duty imposed by the act of 1898
specifically upon the vellum, parchment, or paper upon which was
written or printed a bill of lading for property, of whatever
value, intended for export, cannot be regarded as a duty on the
property itself.
It is said that the power to tax is the power to destroy, and
that, if Congress can impose a stamp tax of ten cents upon the
vellum, parchment, or paper on which is written a bill of lading
for articles to be exported from a state, it could as well impose a
duty of five thousand dollars, and thereby indirectly tax the
articles intended for export. That conclusion would by no means
follow. A
stamp duty has now, and has had for centuries, a
well defined meaning. It has always been distinguished from an
ordinary tax measured by the value or kind of the property taxed.
If Congress, in respect of a bill of lading for articles to be
exported, had imposed a tax of five thousand dollars for and in
respect of the vellum, parchment, or paper upon which such bill was
written, the courts, looking beyond form and considering substance,
might well have held that such an act was contrary to the settled
theory of stamp tax laws, and that the purpose and necessary
operation of such legislation was, in violation of the
Constitution, to tax the articles specified in such bill, and not
to impose simply a stamp duty. Here, the small duty imposed,
without reference to the kind, quantity, or value
Page 181 U. S. 319
of the articles exported, renders it certain that, when Congress
imposed such duty specifically on the vellum, parchment, or paper
upon which the bill of lading was written or printed, it meant what
it so plainly said, and no ground exists to impute a purpose by
indirection to tax the articles exported.
There is another view of this case which presents considerations
of a serious character. In the opinion just rendered, it is
conceded that a stamp tax on vellum, parchment, or paper on which
is printed or written a bill of lading of goods to be shipped out
of the United States could be sustained if regard be had to the
practice of the government since its organization. But that
practice, covering more than a century, must, it seems, go for
naught.
In
Stuart v.
Laird, (1803) 1 Cranch 299,
5
U. S. 309, the question arose whether the Justices of
this Court had the right, although authorized by an act of
Congress, to sit as circuit judges, not having been appointed as
such nor having any distinct commissions for that purpose. This
Court, speaking by Mr. Justice Patterson, said:
"To this objection, which is of recent date, it is sufficient to
observe that
practice and acquiescence under it for a
period of several years, commencing with the organization of the
judicial system, affords an irresistible answer, and has indeed
fixed the construction. It is a contemporary interpretation of the
most forcible nature. This practical exposition is too strong and
obstinate to be shaken or controlled. Of course, the question
is at rest, and ought not now to be disturbed."
In
Prigg v.
Pennsylvania, 16 Pet. 541,
41 U. S. 608,
41 U. S. 621,
this Court, speaking by Mr. Justice Story, after referring to the
section of the Act of February 12, 1793, requiring a certificate to
be given, under certain circumstances, to the owner of a fugitive
slave apprehended under that act, said:
"So far as the judges of the courts of the United States have
been called upon to enforce it and to grant the certificate
required by it, it is believed that it has been uniformly
recognized as a binding and valid law, and as imposing a
constitutional duty. Under such circumstances, if the question were
one of doubtful construction, such long acquiescence in it, such
contemporaneous expositions of it, and such extensive and uniform
recognition of its validity, would, in our
Page 181 U. S. 320
judgment, entitle the question to be considered at rest, unless,
indeed, the interpretation of the Constitution is to be delivered
over to interminable doubt throughout the whole progress of
legislation and of national operations. Congress, the executive,
and the judiciary have upon various occasions acted upon this as
sound and reasonable doctrine,"
citing, among other cases, that of
Stuart
v. Laird, 1 Cranch 229.
In
The Laura, 114 U. S. 411,
114 U. S. 416,
in which the question arose as to the validity of an act of
Congress approved March 3, 1797, 1 Stat. 506, c. 13, authorizing
the Secretary of the Treasury to remit a forfeiture of property
after final sentence of condemnation, this Court said:
"Touching the objection now raised as to the constitutionality
of the legislation in question, it is sufficient to say, as was
said in an early case, that the practice and acquiescence under
it,"
"commencing with the organization of the judicial system,
affords an irresistible answer, and has indeed fixed the
construction. It is a contemporary interpretation of the most
forcible nature. This practical exposition is too strong and
obstinate to be shaken or controlled. Of course, the question is at
rest, and ought not now to be disturbed."
"
Stuart v. Laird, 1 Cranch
308. The same principle was announced in the recent case of
Burrow Lithographic Co. v. Sarony, 111 U. S.
53,
111 U. S. 57, where a question
arose as to the constitutionality of certain statutory provisions
reproduced from some of the earliest statutes enacted by Congress.
The Court said:"
"The construction placed upon the Constitution by the first act
of 1790 and the act of 1802, by the men who were contemporary with
its formation, many of whom were members of the convention which
framed it, is of itself entitled to very great weight, and when it
is remembered that the rights thus established have not been
disputed during a period of nearly a century, it is [almost]
conclusive."
This quotation in
The Laura from the opinion in
Sarony's case was defective in that it omitted, by mistake
in printing, the word "almost" before "conclusive." But the error
does not affect the substance of the decision rendered, as the
Court, in the case of
The Laura, approved and reaffirmed
what was said in
Stuart v. Laird.
In
Schell v. Fauche, 138 U. S. 562,
this Court,
Page 181 U. S. 321
speaking by Mr. Justice Brown, cited with approval what is above
quoted from
Stuart v. Laird, adding:
"In all cases of ambiguity, the contemporaneous construction not
only of the courts, but of the departments and even of the
officials whose duty it is to carry the law into effect, is
universally held to be controlling."
In
McPherson v. Blacker, 146 U. S.
1,
146 U. S. 27,
this Court, speaking by the present CHIEF JUSTICE, said:
"The framers of the Constitution employed words in their natural
sense, and where they are plain and clear, resort to collateral
aids to interpretation is unnecessary and cannot be indulged in to
narrow or enlarge the text; but where there is ambiguity or doubt,
or where two views may well be entertained, contemporaneous and
subsequent practical construction are entitled to the greatest
weight. Certainly plaintiffs in error cannot reasonably assert that
the clause of the Constitution under consideration so plainly
sustains their position as to entitle them to object that
contemporaneous history and practical construction are not to be
allowed their legitimate force, and, conceding that their argument
inspires a doubt sufficient to justify resort to the aids of
interpretation thus afforded, we are of opinion that such doubt is
thereby resolved against them, the
contemporaneous practical
exposition of the Constitution being too strong and obstinate to be
shaken or controlled. Stuart v. Laird, 1 Cranch
299,
5 U. S. 309."
Cases almost without number could be referred to in which the
same principles of constitutional construction are announced as in
the cases above cited. In the latest case,
Knowlton v.
Moore, 178 U. S. 41,
178 U. S. 56,
this Court had occasion, in its review of taxing legislation by
Congress, to refer to the Act of July 6, 1797, the very act in
which Congress first imposed a stamp duty on vellum, parchment, or
paper upon which was written a bill of lading for articles to be
exported. Touching the objection that Congress could not
constitutionally impose, as by that act was imposed, a tax on
inheritances or legacies, this Court, speaking by MR. JUSTICE
WHITE, said:
"It is to be remarked that this proposition denies to Congress
the right to tax a subject matter which was conceded to be within
the scope of its power very early in the history of the government.
The act of 1797,
Page 181 U. S. 322
which ordained legacy taxes, was adopted at a time when the
founders of our government and framers of our Constitution were
actively participating in public affairs, thus giving a practical
construction to the Constitution which they had helped to
establish. Even the then. members of the Congress who had not been
delegated to the convention which framed the Constitution must have
had a keen appreciation of the influences which had shaped the
Constitution and the restrictions which it embodied, since all
questions which related to the Constitution and its adoption must
have been at that early date vividly impressed upon their minds. It
would, under these conditions, be indeed surprising if a tax should
have been levied without question upon objects deemed to be beyond
the grasp of Congress because exclusively within state
authority."
Many cases have been cited which hold that the uniform
contemporaneous construction by
executive officers charged
with the enforcement of a
doubtful or
ambiguous
law is entitled to great weight, and should not be overturned
unless it be plainly or obviously erroneous. If such respect be
accorded to the action of mere executive officers, how much greater
respect is due to the legislative department when it has, at
different periods in the history of the country, exercised a power
as belonging to it under the Constitution, and no one in the course
of a century questioned the existence of the power so exercised.
Besides, we have here a question of the constitutional power of
Congress under the Constitution, and not a question relating merely
to the practice of executive officers acting under a law
susceptible of different interpretations. No one of the acts of
Congress imposing a stamp duty on the vellum, parchment, or paper
on which a bill of lading of articles to be exported was written
can be classed among laws that are doubtful or ambiguous in their
meaning. No person, however skilful in the use of words, who
attempts to frame a statute imposing a stamp duty, pure and simple,
on such vellum, parchment, or paper could possibly employ language
expressing that thought more distinctly than Congress has done in
the several acts relating to stamp duties of that character. The
words of those acts are clear, and are capable of but one
construction, and the Court determines the
Page 181 U. S. 323
case upon the ground alone of want of power in Congress to
impose the stamp duty in question.
Without further discussion or citation of authorities, we submit
that the denial, at this late day, of the power of Congress to
impose what is strictly a stamp duty on the vellum, parchment, or
paper upon which is written or printed a bill of lading for goods
to be exported to a foreign port or place involves not only a
departure from canons of constitutional construction by which it
has been controlled for more than a century, but, in the words of
Prigg v. Pennsylvania, delivers the interpretation of the
Constitution "over to interminable doubt throughout the whole
progress of legislation and of national operations." Practically no
weight has been given in the opinion just filed to the fact that
the power now denied to Congress has been exercised since the
organization of the government without any suggestion or even
intimation by a single jurist or statesman during all that period
that the Constitution forbade its exercise. It is said that the
question of power never was presented for judicial determination
prior to the present case, and therefore this Court is at liberty
to determine the matter as if now for the first time presented. But
the answer to that suggestion is that, in view of the frequent
legislation by Congress and its enforcement for nearly a century,
the question must have arisen if it had been supposed by anyone
that such legislation infringed the constitutional rights of the
citizen. Within the rule announced in
Stuart v. Laird, and
in other cases, the questions should be considered at rest.
In view of the importance of the case, we have deemed it
appropriate to state the reasons of our dissent from the opinion
and judgment just rendered.