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§ 60. Federal Taxation of State Documents.

In a number of cases in the State courts, interesting points have been raised and decided with reference to the obligation imposed by federal laws to affix stamps to certain documents. There is little doubt that the United States may in its own courts, or in other ways refuse to recognize the validity of unstamped documents, but it would seem that it may not dictate to state agencies what instruments they shall accept as valid and enforceable. Though Congress may provide that certain instruments shall be stamped and that if not so stamped they shall not be received as evidence in federal courts, the State cannot be compelled to exclude them as evidence in its courts upon that ground. of a private nature, that business is not withdrawn from the taxing power of the nation."

Three justices dissented from the judgment rendered in South Carolina v. United States. After a review of authorities, which in their judgment did not warrant the position assumed by the majority in the case on trial, these justices say, in answer to the contention that if the instrumentalities of the State in the control of the liquor trade be declared exempt from federal taxation, the way is opened to the States seriously to interfere with federal revenues by extending their operations in other similar directions: "But these extreme illustrations amount simply to saying that it is possible for the imagination to foreshadow conditions which, did they arise, would impair the government created by the Constitution, and, because such conjectures may be indulged in, the limitations created by the Constitution for the purpose of preserving both the state and national governments are to be disregarded. In other words, that the government created by the Constitution must now be destroyed, because it is possible to suggest conditions which, if they arise, would, in future, produce a like result. But the weakness of the illustrations as applied to this case is apparent. They have no relation to this case, since it is not denied that, as to liquor, the State has absolute power, and may prohibit the sale of all liquor, and thus prevent the United States from deriving revenue from that source. Again, therefore, when the true relation of the argument, to the case in hand is seen, it reduces itself to a complete contradiction, viz., a State may, by prohibition, prevent the United States from reaping revenue from the liquor traffic, but any other state regulation by which such result is accomplished may be prevented by the United States, because thereby the State has done indirectly only that which the State had the lawful power directly to do."

As to the point that the State of South Carolina was deriving a revenue from the conduct of the liquor business, the dissenting justices point to the fact that in previous cases it had been expressly settled that the law establishing the State dispensaries had not been passed as a revenue, but as a purely police measure.

It has also been held by state courts that the United States may not impose a stamp tax upon judicial processes of state courts, or forbid the recording of unstamped mortgages, or tax the official bonds of state officers.

§ 61. Federal Exercise of Eminent Domain in the States.

The relation of the federal power to state governmental instrumentalities has been further illustrated in the matter of the Federal Government's right of eminent domain, it having been held that the General Government has an implied right of eminent domain which it may exercise within a State with or without that State's consent. Though never authoritatively decided the better opinion is, however, that the United States may not take for its own use land or other property essential to the State in performance of its governmental functions.

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The subject will receive fuller treatment in its appropriate place. €2

co Jones v. Keep (19 Wis. 376); Fifield v. Close (15 Mich. 505); Tucker v. Potter (35 Conn. 46); Moore v. Quirk (105 Mass. 49); Sayles v. Davis (22 Wis. 225); Davis v. Richardson (45 Miss. 503); Garland v. Gaines (73 Conn. 662); 52 L. R. A. 915. Cf. Judson, On Taxation, § 501.

61 Monongahela Navigation Co. v. U. S. (148 U. S. 312; 13 Sup. Ct. Rep. 622; 37 L. ed. 463); Chappell v. U. S. (160 U. S. 499; 16 Sup. Ct. Rep. 397; 40 L. ed. 510).

62 McClain, Constitutional Law in the United States, p. 111, says: "As between the Federal Government and a state government, neither one can authorize the condemnation for public use of land which has already been acquired either by condemnation or purchase by the other for public use." He cites, however, no authority, and, moreover, adds: "Possibly the United States Government could not, by any action of the State, be excluded from appropriating state property for federal purposes, but such questions are not likely to arise, for it is hardly conceivable that the Federal Government should find it expedient and necessary to interfere with any State in the enjoyment and discharge of its public rights and duties."

CHAPTER VI.

THE MAINTENANCE OF FEDERAL SUPREMACY BY WRITS OF ERROR FROM THE FEDERAL SUPREME COURT TO STATE COURTS.

§ 62. Writs of Error to State Courts.

A corollary that follows from the supremacy of federal law is that when a federal right, privilege or immunity is set up as a defense or authority for an act, opportunity shall exist for a final determination of this point in the federal courts. As has been earlier pointed out, the original Judiciary Act, passed in the first year of the Constitution, in its famous twenty-fifth section, provided that a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision of the suit could be had," where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity, or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of such their validity, or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission may be re-examined and reversed or affirmed in the Supreme Court of the United States upon writ of error." In order that this appellate jurisdiction may be effectual this section also provides that instead of remanding the cause to the state court for a final decision therein, the Supreme Court may at their discretion, if the cause has been once before remanded, proceed to a final disposition of the same and award execution.

These provisions have remained substantially unchanged since their enactment to the present day.

It will be observed that provision for writ of error from the federal Supreme Court is made only for those cases in which the judgment in the state tribunals is adverse to the alleged federal right, privilege or immunity. Where the state decision is favorable there is, of course, no need, based upon the principle of federal supremacy, for a federal review.

§ 63. Martin v. Hunter's Lessee.

The constitutionality of this section of the Judiciary Act was affirmed by the Supreme Court in 1816 in Martin v. Hunter's Lessee. This was a writ of error to the Court of Appeals of the State of Virginia, founded upon a refusal of that court to obey a mandate of the federal Supreme Court, the state court, in its judgment, saying: "The court is unanimously of opinion that the appellate power of the Supreme Court of the United States does not extend to this court under a sound construction of the Constitution of the United States; that so much of the twentyfifth section of the Act of Congress, to establish the judicial courts of the United States, as extends the appellate jurisdiction of the Supreme Court to this court, is not in performance of the Constitution of the United States. That the writ of error in this case was improvidently allowed under the authority of that act; that the proceedings thereon in the Supreme Court were coram non judice in relation to this court, and that obedience to its mandate be declined by the court."

This position of the state court, the federal court, in one of the weightiest of its decisions, declared to be erroneous, the argument being that, though not granted in express terms, the very nature of the federal authority provided for by the Constitntion makes this appellate power a necessary part of the general judicial power granted to the National Government.

§ 64. Cohens v. Virginia.

The appellate power of the federal Supreme Court under the twenty-fifth section of the Judiciary Act was again contested in 11 Wh. 304; 4 L. ed. 97.

Cohens v. Virginia,2 decided in 1821, Chief Justice Marshall rendering the opinion of the court. This was a criminal case and the first point made was that a case in which a State appeared as defendant in error was a suit against a State and as such forbidden by the Eleventh Amendment. The court held, however, that this Amendment has reference only to the suits in law or equity commenced or prosecuted against one of the United States by citizens of another State, and not to suits originally begun by a State. "It is, then, the opinion of the court," declared Marshall, "that the defendant who removes a judgment rendered against him by a state court into this court, for the purpose of re-examining the question whether that judgment be in violation of the Constitution or laws of the United States, does not commence or prosecute a suit against the State."

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. Secondly, the State renewed its claim that in no case might the appellate jurisdiction of the Supreme Court be constitutionally exercised over the judgment of a state court. To this Marshall replied that the nature of the Federal Union provided by the Constitution and intended by its framers and adopters, required the exercise of the power. "We think," he declared, "that in a government acknowledgedly supreme, with respect to objects of vital interest to the Nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme, so far as respects those objects, and so far as is necessary to their attainment. The exercise of the appellate power over those judgments of the state tribunals which may contravene the Constitution or laws of the United States, is, we believe, essential to the attainment of those objects."

To the contention made by the State that to grant the appellate jurisdiction in question would be to render possible a complete consolidation of federal and state judicial power, Marshall replied: "A complete consolidation of the States so far as respects the judicial power would authorize the legislature to confer on the federal courts appellate jurisdiction from the state courts in all 26 Wh. 264; 5 L. ed. 257.

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