Hylton v. The United States. 3 D.

A given

tion under the former government. Let us put the case.
sum is to be raised from the landed property in the United States.
It is easy to apportion this sum, or to assign to each State its quota.
The constitution gives the rule. Suppose the proportion of North
Carolina to be eighty thousand dollars. This sum is to be laid on
the landed property in the State, but by what rule, and by
whom? Shall every acre pay the same sum, without re- [*179]
gard to its quality, value, situation, or productiveness? This
would be manifestly unjust. Do the laws of the different States fur-
nish sufficient data for the purpose of forming one common rule, com-
prehending the quality, situation, and value of the lands? In some
of the States there has been no land tax for several years, and where
there has been, the mode of laying the tax is so various, and the diver-
sity in the land is so great, that no common principle can be deduced,
and carried into practice. Do the laws of each State furnish data from
whence to extract a rule, whose operation shall be equal and certain
in the same State? Even this is doubtful. Besides, subdivisions
will be necessary; the apportionment of the State, and perhaps of a
particular part of the State, is again to be apportioned among coun-
ties, townships, parishes, or districts. If the lands be classed, then a
specific value must be annexed to each class. And there a question
arises, how often are classifications and assessments to be made?
Annually, triennially, septennially? The oftener they are made, the
greater will be the expense; and the seldomer they are made, the
greater will be the inequality and injustice. In the process of the
operation a number of persons will be necessary, to class, to value,
and assess the land; and after all the guards and provisions that can
be devised, we must ultimately rely upon the discretion of the officers
in the exercise of their functions. Tribunals of appeal must also be
instituted to hear and decide upon unjust valuations, or the assessors
will act ad libitum without check or control. The work, it is to be
feared, will be operose and unproductive, and full of inequality, injus-
tice, and oppression. Let us, however, hope, that a system of land
taxation may be so corrected and matured by practice, as to become
easy and equal in its operation, and productive and beneficial in its
effects. But to return. A tax on carriages, if apportioned, would be
oppressive and pernicious. How would it work? In some States
there are many carriages, and in others but few. Shall the whole
sum fall on one or two individuals in a State, who may happen to
own and possess carriages? The thing would be absurd and inequi-
table. In answer to this objection, it has been observed, that the sum,
and not the tax, is to be apportioned; and that congress may select
in the different States different articles or objects from whence to raise

Hylton v. The United States. 3 D.

the apportioned sum. The idea is novel. What, shall land be taxed in one State, slaves in another, carriages in a third, and horses in a fourth; or shall several of these be thrown together, in order to levy and make the quotaed sum? The scheme is fanciful. It would not work well, and perhaps is utterly impracticable. It is easy to discern, that great, and perhaps insurmountable, obstacles must arise [* 180] in forming the subordinate arrangements necessary to carry the system into effect; when formed, the operation would be slow and expensive, unequal and unjust. If a tax upon land, where the object is simple and uniform throughout the States, is scarcely practicable, what shall we say of a tax attempted to be apportioned among, and raised and collected from, a number of dissimilar objects. The difficulty will increase with the number and variety of the things proposed for taxation. We shall be obliged to resort to intricate and endless valuations and assessments, in which every thing will be arbitrary, and nothing certain. There will be no rule to walk by. The rule of uniformity, on the contrary, implies certainty, and leaves nothing to the will and pleasure of the assessor. In such case, the object and the sum coincide, the rule and the thing unite, and of course there can be no imposition. The truth is, that the articles taxed in one State should be taxed in another; in this way the spirit of jealousy is appeased, and tranquillity preserved; in this way the pressure on industry will be equal in the several States, and the relation between the different subjects of taxation duly preserved. Apportionment is an operation on States, and involves valuations and assessments, which are arbitrary, and should not be resorted to but in case of necessity. Uniformity is an instant operation on individuals, without the intervention of assessments, or any regard to States, and is at once easy, certain, and efficacious. All taxes on expenses or consumption are indirect taxes. A tax on carriages is of this kind, and of course is not a direct tax. Indirect taxes are circuitous modes of reaching the revenue of individuals, who generally live according to their income. In many cases of this nature the individual may be said to tax himself. I shall close the discourse with reading a passage or two from Smith's Wealth of Nations.

"The impossibility of taxing people in proportion to their revenue by any capitation, seems to have given occasion to the invention of taxes upon consumable commodities; the State not knowing how to tax directly and proportionably the revenue of its subjects, endeavors to tax it indirectly by taxing their expense, which it is supposed in most cases will be nearly in proportion to their revenue. Their expense is taxed by taxing the consumable commodities upon which it is laid out. Vol. iii. p. 331.

Hylton v. The United States. 3 D.

"Consumable commodities, whether necessaries or luxuries, may be taxed in two different ways; the consumer may either pay an annual sum on account of his using or consuming goods of a certain kind, or the goods may be taxed while they remain in the hands of the dealer, and before they are delivered to the consumer. The consumable goods, which last a considerable time [181 ] before they are consumed altogether, are most properly taxed

in the one way; those of which the consumption is immediate, or more speedy, in the other; the coach tax and plate tax are examples of the former method of imposing; the greater part of the other duties of excise and customs, of the latter." Vol. iii. Vol. iii. p. 341. I am, therefore, of opinion that the judgment rendered in the circuit court of Virginia ought to be affirmed.

IREDELL, J. I agree in opinion with my brothers, who have already expressed theirs, that the tax in question is agreeable to the constitution; and the reasons which have satisfied me can be delivered in a very few words, since I think the constitution itself affords a clear guide to decide the controversy.

The congress possess the power of taxing all taxable objects, without limitation, with the particular exception of a duty on exports. There are two restrictions only on the exercise of this authority1. All direct taxes must be apportioned.

2. All duties, imposts, and excises must be uniform.

If the carriage tax be a direct tax, within the meaning of the constitution, it must be apportioned.

If it be a duty, impost, or excise, within the meaning of the con stitution, it must be uniform.

If it can be considered as a tax, neither direct within the meaning. of the constitution, nor comprehended within the term duty, impost, or excise; there is no provision in the constitution, one way or another, and then it must be left to such an operation of the power, as if the authority to lay taxes had been given generally in all instances, without saying whether they should be apportioned or uniform; and in that case, I should presume, the tax ought to be uniform; because the present constitution was particularly intended to affect individuals, and not States, except in particular cases specified; and this is the leading distinction between the articles of confederation and the present constitution.

As all direct taxes must be apportioned, it is evident that the constitution contemplated none as direct but such as could be apportioned. If this cannot be apportioned, it is, therefore, not a direct tax in the sense of the constitution.

Hylton v. The United States. 3 D.

That this tax cannot be apportioned is evident. Suppose ten dollars contemplated as a tax on each chariot, or post chaise, in the United States, and the number of both in all the United States be computed at one hundred and five, the number of represent[*182] atives in congress, this would produce in the whole one thousand and fifty dollars; the share of Virginia, being 19-105 parts, would be one hundred and ninety dollars; the share of Connecticut, being 7-105 parts, would be seventy dollars; then suppose Virginia had fifty carriages, Connecticut two, the share of Virginia being one hundred and ninety dollars, this must of course be collected from the owners of carriages, and there would therefore be collected from each carriage three dollars and eighty cents; the share of Connecticut being seventy dollars, each carriage would pay thirty-five dollars.

If any State had no carriages, there could be no apportionment at all. This mode is too manifestly absurd to be supported, and has not even been attempted in debate.

But two expedients have been proposed of a very extraordinary nature to evade the difficulty.

1. To raise the money a tax on carriages would produce, not by laying a tax on each carriage uniformly, but by selecting different articles in different States, so that the amount paid in each State may be equal to the sum due upon a principle of apportionment. One State might pay by a tax on carriages, another by a tax on slaves, &c.

I should have thought this merely an exercise of ingenuity, if it had not been pressed with some earnestness; and as this was done by gentlemen of high respectability in their profession, it deserves a serious answer, though it is very difficult to give such a one.

1. This is not an apportionment, of a tax on carriages, but of the money a tax on carriages might be supposed to produce, which is quite a different thing.

2. It admits that congress cannot lay an uniform tax on all carriages in the Union, in any mode, but that they may on carriages in one or more States. They may therefore lay a tax on carriages in fourteen States, but not in the fifteenth.

3. If congress, according to this new decree, may select carriages as a proper object, in one or more States, but omit them in others, I presume they may omit them in all, and select other articles.

Suppose, then, a tax on carriages would produce $100,000, and a tax on horses a like sum, $100,000, and $100,000 were to be appor tioned according to that mode; gentlemen might amuse themselves with calling this a tax on carriages, or a tax on horses, while not

Hylton v. The United States. 3 D.

a * single carriage, nor a single horse was taxed throughout [* 183 ] the Union.

4. Such an arbitrary method of taxing different States differently, is a suggestion altogether new, and would lead, if practised, to such dangerous consequences that it will require very powerful arguments to show that that method of taxing would be in any manner compatible with the constitution, with which at present, I deem it utterly irreconcilable, it being altogether destructive of the notion of a common interest, upon which the very principles of the constitution are founded, so far as the condition of the United States will admit.

The second expedient proposed was, that of taxing carriages, among other things, in a general assessment. This amounts to saying that congress may lay a tax on carriages, but that they may not do it unless they blend it with other subjects of taxation. For this, no reason or authority has been given, and in addition to other suggestions offered by the counsel on that side, affords an irrefragable proof, that when positions plainly so untenable, are offered to counteract the principle contended for by the opposite counsel, the principle itself is a right one; for, no one can doubt, that if better reasons could have been offered, they would not have escaped the sagacity and learning of the gentlemen who offered them.

There is no necessity or propriety in determining what is, or is not a direct or indirect tax in all cases.

Some difficulties may occur which we do not at present foresee. Perhaps a direct tax, in the sense of the constitution, can mean nothing but a tax on something inseparably annexed to the soil, something capable of apportionment under all such circumstances. A land or a poll tax may be considered of this description.

The latter is to be considered so particularly under the present constitution, on account of the slaves in the southern States, who give a ratio in the representation in the proportion of three to five. Either of these is capable of apportionment.

In regard to other articles, there may possibly be considerable doubt.

It is sufficient, on the present occasion, for the court to be satisfied that this is not a direct tax contemplated by the constitution, in order to affirm the present judgment; since, if it cannot be apportioned, it must necessarily be uniform.

I am clearly of opinion this is not a direct tax in the sense of the constitution, and, therefore, that the judgment ought to be affirmed.

WILSON, J. As there were only four judges, including

myself, who attended the argument of this cause, I *should [* 184]