1796, in the case of Hylton v. The United States. (c) By the act of *5th June, 1794, Congress laid a duty upon * 255 carriages for the conveyance of persons, and the question was whether this was a direct tax, within the meaning of the Constitution. If it was not a direct tax, it was admitted to be rightly laid, under that part of the Constitution which declares that all duties, imposts, and excises shall be uniform throughout the United States; but if it was a direct tax, it was not constitutionally laid, for it must then be laid according to the census, under that part of the Constitution which declares that direct taxes shall be apportioned among the several states according to numbers. The Circuit Court in Virginia was divided in opinion on the question; but on appeal to the Supreme Court, it was decided, that the tax on carriages was not a direct tax, within the letter or meaning of the Constitution, and was therefore constitutionally laid. (c) 3 Dallas, 171. cident to some other express power; an express grant seems to exclude implications; the power to "coin money" means to strike off metallic medals (coin), and to make those medals legal tender (money); if the Constitution says expressly that Congress shall have power to make metallic legal tender, how can it be taken to say by implication that Congress shall have power to make paper legal tender? 7 Am. Law Rev. 146. In December, 1870, the subject was brought once more before the Supreme Court, the composition of which had been changed in the mean time by the resignation of one judge and the appointment of two others, and the whole matter was allowed to be reargued. The court took considerable time to deliberate, and at length overruled their former decision, and affirmed the constitutionality of the acts, both as to contracts made before and after the passage, by a majority of five to four. Legal Tender Cases, Knox v. Lee; Parker v. Davis, 12 Wall. 457. The majority do not go further into the expediency of the measure than to show that it was not improper under the circumstances, but devote themselves more to showing that it was not inconsistent with the spirit of the Constitution and to overthrowing the argument stated above. Mr. Justice Strong suggests, as an answer, that the grant of power to punish counterfeiting, treason, &c., has been held not to exclude an implied power to make other offences punishable (citing United States v. Marigold, 9 How. 560). See also United States v. Dewitt, 9 Wall. 41, 44, post, 439, n. 1. The implied power, moreover, need not be deduced from any one of those expressly granted, but may be inferred from the sum of all the powers which make the United States a nation, and the fact that whatever power there is over the currency is vested in Congress. Field, J., in his able dissenting opinion, inter alia, reproduces the argument stated above, with great force. 12 Wall. 649, 655. See Trebilcock v. Wilson, post, 326, n. 1; Railroad Co. v. Johnson, 15 Wall. 195. [See especially Legal Tender Case, 110 U. S. 421.] The question was deemed of very great importance, and was elaborately argued. It was held that a general power was given to Congress to lay and collect taxes of every kind or nature, without any restraint. They had plenary power over every species of taxable property, except exports. But there were two rules prescribed for their government: the rule of uniformity, and the rule of apportionment. Three kinds of taxes, viz. duties, imposts, and excises, were to be laid by the first rule; and capitation, and other direct taxes, by the second rule. If there were any other species of taxes, as the court seemed to suppose there might be, that were not direct, and not included within. the words "duties, imposts, or excises," they were to be laid by the rule of uniformity or not, as Congress should think proper and reasonable. The Constitution contemplated no taxes as direct taxes, but such as Congress could lay in proportion to the census; and the rule of apportionment could not reasonably apply to a tax on carriages, nor could the tax on carriages be laid by that rule, without very great inequality and injustice. If two states, equal in census, were each to pay 8,000 dollars, by a tax on *256 carriages, and in one state there were 100 carriages, and in another 1,000, the tax on each carriage would be ten times as much in one state as in the other. While A., in the one state, would pay for his carriage eight dollars, B., in the other state, would pay for his carriage eighty dollars. In this way, it was shown by the court, that the notion that a tax on carriages was a direct tax, within the purview of the Constitution, and to be apportioned according to the census, would lead to the grossest abuse and oppression. This argument was conclusive against the construction set up, and the tax on carriages was considered as included within the power to lay duties; and 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 (x) The court concluded that 1 This is sustained by the language of the Supreme Court in later cases, with the possible addition of taxes on personal (x) See Springer v. United States, 102 U. S. 586; Scholey v. Rew, 23 Wall. 331; Minot v. Winthrop, 161 Mass. 113, 119, property by general valuation and assessment of the various descriptions possessed within the several states. Chief Justice 128. The Federal income tax of 1894 upon personal "gains, profits, and income," is unconstitutional, as being a the tax on carriages was an indirect tax on expense or consumption, and, therefore, properly laid, pursuant to the rule of uniformity. In Loughborough v. Blake, (a) the power of taxation was again brought under judicial discussion. The question was immediately of a local nature, and it was, whether Congress had the right to impose a direct tax upon the unrepresented District of Columbia; but there were principles involved in the decision (a) 5 Wheaton, 317. Chase intimates that the definitions of direct taxes by political economists cannot be used satisfactorily for the purpose of construing the phrase in the Constitution. Thus, a tax on the circulation by direct tax. Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429; 158 U. S. 601. See 29 Am. L. Rev. 550; 9 Harv. L. Rev. 198. Succession taxes and taxes upon the franchises of corporations are now usually held to be excises, and not direct taxes. See Minot v. Winthrop, 162 Mass. 113, 119, 120, 128, and cases there cited. A direct tax upon lands does not, of itself, create any liability on the part of the States to pay the tax. United States v. Louisiana, 123 U. S. 32. Statutes which impose taxes, though not mandatory in terms, are to be so regarded when necessary for the tax-payer's protection. Erhardt v. Schroeder, 155 U. S. 124. The provision of the U. S. Rev. Stats. § 3224, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court," applies not only to valid assessments, but also to any tax which the government claims to be constitutionally valid. Snyder v. Marks, 109 U. S. 189; Kensett v. Stivers, 18 Blatch. 397; Miles v. Johnson, 59 Fed. Rep. 38; Alkan v. Bean, 8 Biss. 83. The same principle should also, it seems, be applied to unjust taxation by a State, especially when the entire tax is banks of state bank notes is held not to be direct. Veazie Bank v. Fenno, 8 Wall. 533, 541, 546; and so of a tax on incomes of insurance companies. Pacific Ins. Co. v. Soule, 7 Wall. 433. ment. not illegal, the remedy of the tax-payer being, after payment, to sue for re-payState Railway Tax Cases, 92 U. S. 516, 617; Tennessee v. Sneed, 96 U. S. 69; Pacific Express Co. v. Seibert, 44 Fed. Rep. 310; 142 U. S. 339; McTwiggan v. Hunter (R. I.), 30 Atl. Rep. 962; Odlin v. Woodruff, 31 Fla. 160; 22 L. R. A. 699, note. A State statute, which provides a remedy by injunction against the collection of an illegal tax, may be enforced by a Federal court in the State, although the statute also provides for recovering back the tax when paid, by an action at law. Meyers v. Shields, 61 Fed. Rep. 713. A suit against a State officer to restrain the assessment or collection of a State tax, is not a suit against the State, though it is named as a party, and it may be prosecuted in the Federal Courts. Poindexter v. Greenhow, 114 U. S. 270; Secor v. Singleton, 35 Fed. Rep. 376. If a State officer seizes for taxes, and refuses to surrender, property in the hands of the receiver of a Federal court, a proceeding for contempt for that cause is not a suit against the State. Ex parte Tyler, 149 U. S. 164; see infra, 297, notes. which had an extensive and important relation to the whole United States. It was declared that the power to tax extended equally to all places over which the government extended. It extended as well to the District of Columbia, and to the territories which were not represented in Congress, as to the rest of the United States. Though duties were to be uniform, and taxes were to be apportioned according to numbers, the power was coextensive with the empire. The inhabitants of the then territories of Michigan, and of Florida, and Arkansas, for instance, as well as the District of Columbia, though without any representa* 257 tion in Congress, were subject to the *full operation of the power of taxation, equally as the people of New York or Massachusetts. But the court held that Congress are not bound, though they may, in their discretion, extend a direct tax to the territories as well as to the states. A direct tax, if laid at all, must be laid on every state conformably to the census, and therefore Congress has no power to exempt any state from its due share of the burden. But it was understood that Congress were under no necessity of extending a tax to the unrepresented District of Columbia, and to the territories; though if they be taxed, then the Constitution gives the rule of assessment. This construction was admitted to be most convenient, for the expense of assessing and collecting a tax in a territory, as the Northwest Territory, for instance, then existed, might exceed the amount of the tax. Here was an anomalous case in our government, in which representation and taxation are not inseparable, though the principle that the power of taxation could not rightfully exist without representation was a fundamental ground of our Revolution. The court did not consider a departure from a general principle, in this case, to be very material or important, because the case was that of territories which were in a state of infancy, advancing to manhood, and looking forward to complete equality, as soon as that state of manhood should be attained. It was the case, also, of the District of Columbia, which had voluntarily relinquished the right of representation, and adopted the whole body of Congress for its legitimate government. 4. Pre-emption of Indian Lands. Congress have the exclusive right of pre-emption to all Indian lands lying within the territo ries of the United States. This was so decided in the case of Johnson v. M'Intosh. (a) Upon the doctrine of the court in that case, and in that of Fletcher v. Peck, (b) the United States own the soil as well as the jurisdiction of the immense tracts of unpatented lands included within their territories, and of all the productive funds which those lands may here- * 258 after create. The title is in the United States by the treaty of peace with Great Britain, and by subsequent cessions from France and Spain, and by cessions from the individual states; and the Indians have only a right of occupancy, and the United States possess the legal title, subject to that occupancy, and with an absolute and exclusive right to extinguish the Indian title of occupancy, either by conquest or purchase. (a) The title of the European nations, and which passed to the United States, to this immense territorial empire, was founded on discovery and conquest; and, by the European customary law of nations, prior discovery gave this title to the soil, subject to the possessory right of the natives, and which occupancy was all the right that European conquerors and discoverers, and which the United States, as succeeding to their title, would admit to reside in the native Indians. The principle is, that the Indians are to be considered merely as occupants, to be protected while in peace in the possession of their lands, but to be deemed incapable of transferring the absolute title to any other than the sovereign of the country. The Constitution (a) gave to Congress the power to dispose of, and to make all needful rules and regulations respecting the territory or other property belonging to the United States, and to admit new states into the Union. Since the Constitution was formed, the value and efficacy of this power have been magnified to an incalculable extent, by the pur(a) 8 Wheaton, 543. (b) 6 Cranch, 142, 143. (x) The United States, having the complete control of the fee of lands reserved by treaty for Indian occupation, conveys both title and right of possession when it makes such a grant as a railroad right of way, which necessarily involves possession. Missouri, K. & T. Ry. Co. v. Roberts, 152 U. S. 114; see Buttz v. No. Pac. R. Co., 119 U. S. 55; United States v. Ordway, 30 Fed. Rep. 30; Denny v. (a) Art. 4, sec. 3. Dodson, 32 id. 899. But lands which are reserved from sale, &c., until the President decides upon their being set aside as an Indian reservation, cannot pass by a railroad grant prior to his decision. No. Pac. R. Co. v. Maclay, 61 Fed. Rep. 554. A State legislature cannot authorize leases on Indian lands. Buffalo, &c. R. Co. v. Lavery, 27 N. Y. S. 443. |