1. Certain lands of A. were distrained and sold by reason of his
refusal to pay the income tax assessed against him under the Act of
June 30, 1864, 13 Stat. 218, as amended by the Act of March 3,
1865,
id., 469, he having no goods or chattels known to
the proper officers out of which the tax and penalty could have
been made. The United States became the purchaser of the lands,
received a deed therefor, and brought ejectment against him.
Held that he cannot raise the question here that the deed,
inasmuch as it refers to the Act of March 30 instead of that of
June 30, should, on the trial, have been excluded from the jury, as
that objection to its admissibility in evidence was not made in the
court of original jurisdiction.
2. Where the collector acted in good faith, it was not improper
for him, in the exercise of his discretion, to sell as an entirety
the lands, consisting of two town lots which were enclosed and
occupied as a single homestead, a dwelling house being upon one of
them and a barn on the other. The state statute under which they
were separately assessed has no application to his proceedings.
3. Congress, in the exercise of its power "to lay and collect
taxes, duties, imposts, and excises," may, to enforce their
payment, authorize the distraint and sale of either real or
personal property. The owner of the property so distrained and sold
is not thereby deprived of it without due process of law.
4. Direct taxes, within the meaning of the Constitution, are
only capitation taxes as expressed in that instrument, and taxes on
real estate.
5. The duty which the internal revenue acts provided should be
assessed, collected, and paid upon gains, profits, and incomes was
an excise or duty, and not a direct tax, within the meaning of the
Constitution.
Page 102 U. S. 587
In June, 1866, the deputy assessor of internal revenue for the
proper district in Illinois delivered to William M. Springer a
notice in writing, with certain accompanying forms, requiring him
within ten days to make out and return, according to those forms, a
list of his income, gains, and profits for the year 1865. In
compliance therewith, Springer made out the necessary statement,
dated June 21, 1866, and delivered it to the deputy, together with
a written protest against the authority of the latter to demand the
statement, on the ground that the acts of Congress under which that
officer acted were unconstitutional and void. The statement,
showing that the net income received by Springer for the year 1865,
and subject to taxation, amounted to $50,798, upon which the sum of
$4,799.80 was assessed as tax, was transmitted to David T. Littler,
the collector, who, Nov. 17, 1866, payment being refused, served a
notice upon Springer demanding payment, and warning him that,
unless it should be made within ten days, the law authorized the
collection of the tax, together with a penalty of ten percent
additional by distraint and sale.
Payment being again refused, and Springer having no goods or
chattels which were known to the collector or his deputy, the
collector, Jan. 24, 1867, caused a warrant for $5,279.78, the
amount of the tax and penalty, to be issued and levied upon certain
real estate in the city of Springfield, Sangamon County, Illinois,
consisting of two pieces of lots in the same enclosure without any
division fence, and belonging to Springer, upon one of which pieces
was located his dwelling house and upon the other his barn. The
property was advertised and, on March 15, 1867, sold, the United
States becoming the purchaser for the amount of the tax, penalty,
and costs. On that day Littler, as collector, made and executed to
the United States a deed of the property, which, Nov. 28, 1868, was
recorded in the recorder's office of that county. Jonathan Merriam,
his successor as collector, made and executed, April 17, 1874,
another deed to the United States for the same property. This deed
was duly recorded April 23, 1874. It recites the assessment of the
tax, the demand therefor, the seizure and sale of
Page 102 U. S. 588
the property
"by virtue of an act of Congress of the United States of
America, entitled
An Act to provide internal revenue to support
the government, and to pay interest on the public debt,' approved
July 1, 1862, and the Act of March 30, 1864, as amended."
Dec. 2, 1874, the United States brought this action of ejectment
against Springer.
At the trial, the plaintiff, having proved the foregoing facts,
offered in evidence the deed of April 17, 1874; but the defendant
objected thereto on the ground that the deed is void, because the
tax demanded of him was a direct tax, and, not being levied in the
manner prescribed by the Constitution, was not a legal or valid
demand upon him; that the summary levy upon and sale of his
property without opportunity to him to be heard in court deprived
him of his property without due process of law; that the acts of
Congress purporting to authorize the assessment and levy of the
tax, the sale of his property and the execution of the deed, were
without force or validity; and that as the property was susceptible
of division into separate tracts or lots, the laws of Illinois were
disregarded by not selling it accordingly. He also for the same
reasons objected to the introduction in evidence of the papers
pertaining to the assessment, levy, and sale; but the court
overruled the objection, and permitted them and the deed to be read
in evidence. The defendant thereupon excepted.
It was proved by the defendant that he purchased the lots from
different parties, that they are separately described, are
susceptible of division, and would have sold to better advantage
had they been sold separately; that they were assessed separately
for the purpose of state taxation, and were, in 1866, worth between
$10,000 and $12,000.
The court thereupon, at the request of the plaintiff, charged
the jury: 1. that the deed in question is a valid instrument, and
transferred to the United States the title of the defendant in and
to the lots; 2. that the laws or acts of Congress mentioned in said
deed were valid enactments at the time, and authorized the
proceedings taken in the premises. To which instructions the
defendant excepted, and asked the court to charge the jury --
Page 102 U. S. 589
1. That the tax on the income, gains, and profits of the
defendant, assessed upon him, as appears by the evidence in this
case, was a direct tax within the meaning of the Constitution of
the United States, and that, in order to constitute such tax a
valid claim upon the defendant, it should have been apportioned
among the several states the same as representatives in Congress
are. And if the jury believe from the evidence that such tax was
not so apportioned among the several states, then such tax was
levied in violation of the Constitution, and the sale of
defendant's property to satisfy the same is void, and in that case
they will find for the defendant.
2. That the sale of defendant's real estate to satisfy the tax
assessed upon him in a summary manner, without first having
obtained a judgment in a court of record, was a proceeding to
deprive the defendant of his property without due process of law;
and if the jury believe from the evidence that defendant's real
estate was sold to satisfy the tax assessed upon him, without
having first obtained a judgment in a court of record, or without
giving said defendant an opportunity to be heard in court, then
such sale was void, and they will find for the defendant.
3. That if the jury believe from the evidence in this case that
a penalty of ten percent upon the amount of said tax was assessed
upon defendant by the collector of internal revenue, which penalty
amounted to $479.98, without having obtained a judgment in a court
of record, by due process of law, and that the defendant's real
estate was sold to satisfy said penalty, together with said tax,
then such sale was void, and they will find for the defendant.
4. That a party claiming title to land under a summary or
extraordinary proceeding must show that all the indispensable
preliminaries to a valid sale which the law and the Constitution
prescribe have been complied with; and if they believe from the
evidence that the plaintiff has failed to show that all the
requirements of the law have been complied with in the assessment
and levy of the tax, the service of the notice, the issue of the
warrant, and the execution thereof, in the advertisement and sale
of the property, in the making and
Page 102 U. S. 590
execution of the deed, and in all the other requirements of the
law, then they will find for the defendant.
5. That the sale of real estate to satisfy a personal tax not
levied upon or a lien upon said real estate, without first having
obtained a judgment in a court of record and an execution in
pursuance thereof, is a proceeding to deprive a person of his
property without due process of law; and if they believe from the
evidence in this case that the tax levied upon defendant was not
assessed in the first instance upon said real estate and made a
lien thereon, and that said real estate was sold to satisfy said
tax without a judgment of a court of record, then such sale is
void, and they will find for the defendant.
But the court refused to so charge the jury, to which refusal
the defendant excepted.
The jury found for the United States, and a motion for a new
trial having been refused, to which refusal the defendant excepted,
judgment was rendered accordingly. The defendant then sued out this
writ, and here assigns for error --
1. The admission in evidence of the deed and other papers in the
court below.
2. The refusal of the court to charge the jury as requested by
him.
3. The giving of the charge requested by the plaintiff.
4. The refusal to grant a new trial.
Page 102 U. S. 592
MR. JUSTICE SWAYNE, after stating the facts, delivered the
opinion of the Court.
The central and controlling question in this case is whether the
tax which was levied on the income, gains, and profits of the
plaintiff in error, as set forth in the record, and by pretended
virtue of the acts of Congress and parts of acts therein mentioned,
is a direct tax. It is fundamental with respect to the rights of
the parties and the result of the case. It will be last considered.
Many of the other points made by the plaintiff in error reproduce
the same thing in different forms of language. They will all be
responded to without formally restating any of them. This will
conduce to brevity without sacrificing clearness, and will not
involve the necessary omission of anything proper to be said.
The plaintiff in error advises us by his elaborate brief "that
on the trial of the case below the proceedings were merely formal,"
and that "no arguments or briefs were submitted, and only such
proceedings were had as were necessary to prepare the case for the
Supreme Court."
This accounts for the numerous defects in the record as a whole.
It was doubtless intended that only the question presented in the
first of the assignments of error should be considered
Page 102 U. S. 593
here. In that respect the record is full and sufficient. Other
alleged errors, however, have been pressed upon our attention, and
we must dispose of them.
There is clearly a misrecital in the deed of one of the acts of
Congress to which it refers. By the act of the
30th of
March, 1864, was clearly meant the act of the
30th of
June, in the same year. There is no act relating to internal
revenue of the former date.
But the plaintiff in error cannot avail himself of this fact,
for several reasons.
The point was not brought to the attention of the court below,
and cannot therefore be insisted upon here. It comes within the
rule
falsa demonstratio non nocet. It was the Act of June
30, 1864, as amended by the Act of March 3, 1865, that was in force
when the tax was assessed. The latter act took effect April 1,
1865, and declared that
"the duty herein provided for shall be assessed, collected, and
paid upon the gains, profits, and income for the year ending the
thirty-first day of December next preceding the time for levying,
collecting, and paying said duty."
The tax was assessed for the year 1865 in the spring of 1866,
under the act of 1865, according to the requirements of that act;
and we find, upon examination, that the assessment was in all
things correct. 13 Stat. 469, 479. The criticism of the plaintiff
in error in this regard is therefore without foundation.
The proceedings of the collector were not in conflict with the
amendment to the Constitution which declares that "no person shall
be deprived of life, liberty, or property without due process of
law." The power to distrain personal property for the payment of
taxes is almost as old as the common law. Cooley, Taxation 302. The
Constitution gives to Congress the power "to lay and collect taxes,
duties, imposts, and excises." Except as to exports, no limit to
the exercise of the power is prescribed. In
McCulloch
v. Maryland, 4 Wheat. 316, Mr. Chief Justice
Marshall said, "The power to tax involves the power to destroy."
Why is it not competent for Congress to apply to realty as well as
personalty the power to distrain and sell when necessary to enforce
the payment of a tax? It is only the
Page 102 U. S. 594
further legitimate exercise of the same power for the same
purpose. In
Murray's Lessee v. Hoboken
Land & Improvement Co., 18 How. 274, this Court
held that an act of Congress authorizing a warrant to issue,
without oath, against a public debtor, for the seizure of his
property, was valid; that the warrant was conclusive evidence of
the facts recited in it, and that the proceeding was "due process
of law" in that case.
See also De Treville v. Smalls,
98 U. S. 517;
Sherry v. McKinley, 99 U. S. 496;
Miller v. United
States, 11 Wall. 268;
Tyler v.
Defrees, 11 Wall. 331.
The prompt payment of taxes is always important to the public
welfare. It may be vital to the existence of a government. The idea
that every taxpayer is entitled to the delays of litigation is
unreason. If the laws here in question involved any wrong or
unnecessary harshness, it was for Congress, or the people who make
congresses, to see that the evil was corrected. The remedy does not
lie with the judicial branch of the government.
The statute of Illinois had no application to the point whether
the premises should be sold by the collector
en masse or
in two or more parcels. The fact that the house was on one lot and
the barn on the other, that the whole was surrounded by a common
enclosure, and that the entire property was occupied as a single
homestead, rendered it not improper for the collector to make the
sale as it was made. No suspicion of bad faith attaches to him. He
was clothed with a discretion, and it is to be presumed that he
exercised it both fairly and well.
Olcott v.
Bynum, 17 Wall. 44.
Certainly the contrary does not appear. If the tax was not a
direct tax, the instructions given by the court, brief as they
were, covered the whole case, and submitted it properly to the
jury.
The plaintiff in error was entitled to nothing more. The fourth
instruction which he asked for was liable to several fatal
objections. It was too general and indefinite. It left it for the
jury to decide what were the "indispensable preliminaries" required
by the law and Constitution in the numerous particulars specified.
It referred to matters to which the attention of the court below
does not appear to have been called, and in
Page 102 U. S. 595
regard to which, if this had been done, the requisite proof
would doubtless have been supplied. It falls within the principle
of the rule so often applied by this court, that where instructions
are asked in a mass, if one of them be wrong the whole may be
rejected. The record does not purport to give all the testimony,
and its defects are doubtless largely due to the mode in which the
case was tried, and the single object already stated which the
parties then had in view. The instruction was properly refused.
To grant or refuse a new trial was a matter within the
discretion of the court. That it was refused cannot be assigned for
error here.
Several other minor points have been earnestly argued by the
learned plaintiff in error, but as they are all within the category
of not having been taken in the court below, we need not more
particularly advert to them.
This brings us to the examination of the main question in the
case.
The clauses of the Constitution bearing on the subject are as
follows:
"Representatives and direct taxes shall be apportioned among the
several states which may be included within this Union, according
to their respective numbers, which shall be determined by adding to
the whole number those bound to service for a term of years, and
excluding Indians not taxed, three-fifths of all other persons. . .
. No capitation or other direct tax shall be laid unless in
proportion to the census hereinbefore directed to be taken."
Was the tax here in question a
direct tax? If it was,
not having been laid according to the requirements of the
Constitution, it must be admitted that the laws imposing it, and
the proceedings taken under them by the assessor and collector for
its imposition and collection, were all void.
Many of the provisions of the Articles of Confederation of 1777
were embodied in the existing organic law. They provided for a
common treasury and the mode of supplying it with funds. The latter
was by requisitions upon the several states. The delays and
difficulties in procuring the compliance of the states, it is
known, was one of the causes that led to the adoption
Page 102 U. S. 596
of the present Constitution. This clause of the articles throws
no light on the question we are called upon to consider. Nor does
the journal of the proceedings of the constitutional convention of
1787 contain anything of much value relating to the subject.
It appears that on the 11th of July, in that year, there was a
debate of some warmth involving the topic of slavery. On the day
following, Gouverneur Morris, of New York, submitted a proposition
"that taxation shall be in proportion to representation." It is
further recorded in this day's proceedings, that Mr. Morris having
so varied his motion by inserting the word "direct," it passed
nem. con., as follows: "Provided always that direct taxes
ought to be proportioned to representation." 2 Madison Papers, by
Gilpin, pp. 1079-1081.
On the 24th of the same month, Mr. Morris said that
"he hoped the committee would strike out the whole clause. . . .
He had only meant it as a bridge to assist us over a gulf; having
passed the gulf, the bridge may be removed. He thought the
principle laid down with so much strictness liable to strong
objections."
Id., 1197. The gulf was the share of representation
claimed by the Southern states on account of their slave
population. But the bridge remained. The builder could not remove
it, much as he desired to do so. All parties seem thereafter to
have avoided the subject. With one or two immaterial exceptions,
not necessary to be noted, it does not appear that it was again
adverted to in any way. It was silently incorporated into the draft
of the Constitution as that instrument was finally adopted.
It does not appear that an attempt was made by any one to define
the exact meaning of the language employed.
In the twenty-first number of the Federalist, Alexander
Hamilton, speaking of taxes generally, said:
"Those of the
direct kind, which principally relate to
land and buildings, may admit of a rule of
apportionment.
Either the value of the land or the number of the people may serve
as a standard."
The thirty-sixth number of that work, by the same author, is
devoted to the subject of internal taxes. It is there said, "They
may be subdivided into those of the
direct and those of
the
Page 102 U. S. 597
indirect kind." In this connection land taxes and poll
taxes are discussed. The former are commended and the latter are
condemned. Nothing is said of any other direct tax. In neither case
is there a definition given or attempted of the phrase "
direct
tax."
The very elaborate researches of the plaintiff in error have
furnished us with nothing from the debates of the state
conventions, by whom the Constitution was adopted, which gives us
any aid. Hence we may safely assume that no such material exists in
that direction, though it is known that Virginia proposed to
Congress an amendment relating to the subject, and that
Massachusetts, South Carolina, New York, and North Carolina
expressed strong disapprobation of the power given to impose such
burdens. 1 Tucker's Blackstone, pt. 1, app., 235.
Perhaps the two most authoritative persons in the convention
touching the Constitution were Hamilton and Madison. The latter, in
a letter of May 11, 1794, speaking of the tax which was adjudicated
upon in
Hylton v. United
States, 3 Dall. 171, said,
"The tax on carriages succeeded in spite of the Constitution by
a majority of twenty, the advocates of the principle being
reinforced by the adversaries of luxury."
2 Mad. Writings (pub. by Congress) p. 14. In another letter, of
the 7th of February, 1796, referring to the case of
Hylton v.
United States, then pending, he remarked:
"There never was a question on which my mind was better
satisfied, and yet I have very little expectation that it will be
viewed in the same light by the court that it is by me."
Id., 77. Whence the despondency thus expressed is
unexplained.
Hamilton left behind him a series of legal briefs, and among
them one entitled "Carriage tax."
See vol. vii. p. 848, of
his works. This paper was evidently prepared with a view to the
Hylton case, in which he appeared as one of the counsel
for the United States. In it he says:
"What is the distinction between
direct and
indirect taxes? It is a matter of regret that terms so
uncertain and vague in so important a point are to be found in the
Constitution. We shall seek in vain for any antecedent settled
legal meaning to the respective terms. There is none. We shall be
as much at a loss to find any disposition
Page 102 U. S. 598
of either which can satisfactorily determine the point."
There being many carriages in some of the states, and very few
in others, he points out the preposterous consequences if such a
tax be laid and collected on the principle of apportionment instead
of the rule of uniformity. He insists that if the tax there in
question was a direct tax, so would be a tax on ships, according to
their tonnage. He suggests that the boundary line between direct
and indirect taxes be settled by "a species of arbitration," and
that direct taxes be held to be only
"capitation or poll taxes, and taxes on lands and buildings, and
general assessments, whether on the
whole property of
individuals or on their
whole real or personal estate. All
else must, of necessity, be considered as indirect taxes."
The tax here in question falls within neither of these
categories. It is not a tax on the "whole . . . personal estate" of
the individual, but only on his income, gains, and profits during a
year, which may have been but a small part of his personal estate,
and in most cases would have been so. This classification lends no
support to the argument of the plaintiff in error.
The Constitution went into operation on the 4th of March,
1789.
It is important to look into the legislation of Congress
touching the subject since that time. The following summary will
suffice for our purpose. We shall refer to the several acts of
Congress, to be examined according to their sequence in dates. In
all of them, the aggregate amount required to be collected was
apportioned among the several states.
The Act of July 14, 1798, c. 75, 1 Stat. 53. This act imposed a
tax upon real estate and a capitation tax upon slaves.
The Act of Aug. 2, 1813, c. 37, 3
id. 53. By this act
the tax was imposed upon real estate and slaves, according to their
respective values in money.
The Act of Jan. 19, 1815, c. 21,
id. 164. This act
imposed the tax upon the same descriptions of property, and in like
manner as the preceding act.
The Act of Feb. 27, 1815, c. 60,
id. 216, applied to
the District of Columbia the provisions of the Act of Jan. 19,
1815.
Page 102 U. S. 599
The Act of March 5, 1816, c. 24,
id. 255, repealed the
two preceding acts, and reenacted their provisions to enforce the
collection of the smaller amount of tax thereby prescribed.
The Act of Aug. 5, 1861, c. 45, 12
id. 294, required
the tax to be levied wholly on real estate.
The Act of June 7, 1862, c. 98,
id. 422, and the Act of
Feb. 6, 1863, c. 21,
id. 640, both relate only to the
collection, in insurrectionary districts, of the direct tax imposed
by the Act of Aug. 5, 1861, and need not, therefore, be more
particularly noticed.
It will thus be seen that whenever the government has imposed a
tax which it recognized as a direct tax, it has never been applied
to any objects but real estate and slaves. The latter application
may be accounted for upon two grounds: 1. In some of the states
slaves were regarded as real estate, 1 Hurd, Slavery 239;
Veazie Bank v.
Fenno, 8 Wall. 533, and 2, such an extension of the
tax lessened the burden upon the real estate where slavery existed,
while the result to the national treasury was the same, whether the
slaves were omitted or included. The wishes of the South were
therefore allowed to prevail. We are not aware that the question of
the validity of such a tax was ever presented for adjudication
slavery having passed away, it cannot hereafter arise. It does not
appear that any tax like the one here in question was ever regarded
or treated by Congress as a direct tax. This uniform practical
construction of the Constitution touching so important a point,
through so long a period, by the legislative and executive
departments of the government, though not conclusive, is a
consideration of great weight.
There are four adjudications by this court to be considered.
They have an important, if not a conclusive, application to the
case in hand. In
Hylton v. United States, supra, a tax had
been laid upon pleasure carriages. The plaintiff in error insisted
that the tax was void, because it was a direct tax, and had not
been apportioned among the states as required by the Constitution,
where such taxes are imposed. The case was argued on both sides by
counsel of eminence and ability. It was heard and determined by
four judges -- Wilson, Paterson, Chase, and Iredell. The three
first named had been distinguished
Page 102 U. S. 600
members of the constitutional convention. Wilson was on the
committee that reported the completed draft of the instrument, and
warmly advocated its adoption in the state convention of
Pennsylvania. The fourth was a member of the convention of North
Carolina that adopted the Constitution. The case was decided in
1795. The judges were unanimous. The tax was held not to be a
direct tax. Each judge delivered a separate opinion. Their
judgment was put on the ground indicated by Mr. Justice Chase, in
the following extract from his opinion:
"It appears to me that a tax on carriages cannot be laid by the
rule of
apportionment without very great inequality and
injustice. For example, suppose two states equal in census to pay
eighty thousand dollars each by a tax on carriages of eight dollars
on every carriage; and in one state, there are one hundred
carriages, and in the other one thousand. The owners of carriages
in one state would pay ten times the tax of owners in the other.
A., in one state, would pay for his carriage eight dollars, but B.,
in the other state, would pay for his carriage eighty dollars."
It was well held that where such evils would attend the
apportionment of a tax, the Constitution could not have intended
that an apportionment should be made. This view applies with even
greater force to the tax in question in this case. Where the
population is large and the incomes are few and small, it would be
intolerably oppressive.
The difference in the ability of communities, without reference
to numbers, to pay any taxes is forcibly remarked upon by McCulloh
in his article on taxation in the Encyclopedia Britannica, vol.
xxi. (old ed.) p. 75.
Mr. Justice Chase said further,
"That he would give no judicial opinion upon the subject, but
that he was inclined to think that the
direct taxes
contemplated by the Constitution were only two -- a capitation tax
and a tax on land."
Mr. Justice Iredell said:
"Perhaps a direct tax, in the sense of the Constitution, can
mean nothing but a tax on something inseparably annexed to the
soil. . . . A land or poll tax may be considered of this
description. The latter is to be so considered, particularly under
the present Constitution,
Page 102 U. S. 601
on account of the slaves in the Southern states, who give a
ratio in the representation in the proportion of three to
five."
Mr. Justice Paterson said, he never entertained a doubt
"that the principal, he would not say the
only, objects
contemplated by the Constitution as falling within the rule of
apportionment, were a capitation tax and a tax on land."
From these views the other judges expressed no dissent.
"Ellsworth, the Chief Justice sworn into office that morning,
not having heard the whole argument, declined taking part in the
decision." 8 Wall.
75 U. S. 545.
Cushing, from ill health, did not sit in the case. It has been
remarked that if they had been dissatisfied with the result, the
question involved being so important, doubtless a reargument would
have been had.
In
Pacific Insurance Co. v.
Soule, 7 Wall. 433, the taxes in question were upon
the receipts of such companies from premiums and assessments, and
upon all sums made or added, during the year, to their surplus or
contingent funds. This Court held unanimously that the taxes were
not
direct taxes, and that they were valid.
In
Veazie Bank v. Fenno, supra, the tax which came
under consideration was one of ten percent upon the notes of state
banks paid out by other banks, state or National. The same
conclusions were reached by the court as in the preceding case. Mr.
Chief Justice Chase delivered the opinion of the Court. In the
course of his elaborate examination of the subject he said,
"It may be rightly affirmed that, in the practical construction
of the Constitution by Congress, direct taxes have been limited to
taxes on land and appurtenances and taxes on polls, or capitation
taxes."
In
Scholey v.
Rew, 23 Wall. 331, the tax involved was a
succession tax, imposed by the Acts of Congress of June 30, 1864,
and July 13, 1866. It was held that the tax was not a
direct tax, and that it was constitutional and valid. In
delivering the opinion of the Court, Mr. Justice Clifford, after
remarking that the tax there in question was not a direct tax,
said:
"Instead of that, it is plainly an excise tax or duty,
authorized by sec. 1, art. 8, of the Constitution, which vests the
power in
Page 102 U. S. 602
Congress to lay and collect taxes, duties, imposts, and excises
to pay the debts and provide for the common defense and public
welfare."
He said further:
"Taxes on houses, lands, and other permanent real estate have
always been deemed to be direct taxes, and capitation taxes, by the
express words of the Constitution, are within the same category;
but it has never been decided that any other legal exactions for
the support of the federal government fall within the condition
that unless laid in proportion to numbers the assessment is
invalid."
All these cases are undistinguishable in principle from the case
now before us, and they are decisive against the plaintiff in
error.
The question, what is a direct tax, is one exclusively in
American jurisprudence. The text writers of the country are in
entire accord upon the subject.
Mr. Justice Story says all taxes are usually divided into two
classes -- those which are
direct and those which are
indirect -- and that "under the former denomination are
included taxes on land or real property, and, under the latter,
taxes on consumption." 1 Const., sec. 950.
Chancellor Kent, speaking of the case of
Hylton v. United
States, says: "The better opinion seemed to be that the direct
taxes contemplated by the Constitution were only two,
viz., a capitation or poll tax and a tax on land." 1 Com.
257.
See also Cooley, Taxation, p. 5, note 2; Pomeroy,
Const.Law 157; Sharswood's Blackstone 308, note; Rawle, Const. 30;
Sergenat, Const. 305.
We are not aware that any writer, since
Hylton v. United
States was decided, has expressed a view of the subject
different from that of these authors.
Our conclusions are, that
direct taxes, within the
meaning of the Constitution, are only capitation taxes, as
expressed in that instrument, and taxes on real estate; and that
the tax of which the plaintiff in error complains is within the
category of an excise or duty. Pomeroy, Const.Law, 177;
Pacific
Insurance Co. v. Soule, and
Scholey v. Rew,
supra.
Against the considerations, in one scale, in favor of these
Page 102 U. S. 603
propositions, what has been placed in the other, as a
counterpoise? Our answer is, certainly nothing of such weight, in
our judgment, as to require any special reply.
The numerous citations from the writings of foreign political
economists, made by the plaintiff in error, are sufficiently
answered by Hamilton in his brief, before referred to.
Judgment affirmed.
