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To come within the definition of an export tax, it has been held that the tax must be one levied upon the right to export, or upon goods because of the fact that they are being exported or are intended to be exported. The fact that certain goods are intended for export does not, however, exempt them from an ordinary property tax, for, as said, the tax is one on exports only when its incidence or amount is determined by the fact that the goods are intended for export. This is the doctrine laid down in Coe v. Errol with reference to taxation by the States and in Turpin v. Burgess with reference to federal taxation.

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Congress is forbidden to lay any tax or duty.' The State is forbidden from laying imposts or duties on imports or exports,' that is, articles coming into or going out of the United States. Congress is forbidden to tax articles exported from any State.' Congress may lay local taxes in the territories, affecting persons and property therein, or authorize territorial legislatures to do so, but it cannot lay tariff duties on articles exported from one State to another, or from any State to the territories, or from any State to foreign countries, or grant a power in that regard which it does not possess. But the decision now made recognizes such powers in Congress as will enable it, under the guise of taxation, to exclude the products of Porto Rico; and this, notwithstanding it was held in De Lima v. Bidwell (182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041), that Porto Rico after the ratification of the treaty with Spain ceased to be foreign and became domestic territory."

62 116 U. S. 517; 6 Sup. Ct. Rep. 475; 29 L. ed. 715. 63 117 U. S. 504; 6 Sup. Ct. Rep. 835; 29 L. ed. 988. 64 In the latter case the court say: "There is another view of this subject, however, independent of the considerations which governed our former decision, which is equally decisive of this case. We have lately decided in Coe v. Errol that goods intended for exportation to another State are liable to taxation as part of the general mass of property of the State of their origin until actually started in course of transportation to the State of their destination, or delivered to a common carrier for that purpose, provided they are taxed in the usual way in which such property is taxed, and not taxed by reason or because of such exportation, or intended exportation, and that the carrying of them to and depositing them at a depot for the purpose of transportation is no part of that transportation. Now the constitutional provision against taxing exports is substantially the same when directed to the United States as when directed to a State. In the one case the words are, 'No tax or duty shall be laid on articles exported from any State.' Art. I, § 9, par. 2. In the other they are: 'No State shall, without the consent of Congress, lay any imposts or duties on imports or exports.' Art. I, § 10, par. 2. The prohibition in both cases has reference to the imposition of duties on goods by reason or because of their exportation, or intended exportation, or while they are

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In Pace v. Burgess was questioned the validity of a federal law requiring stamps to be affixed to packages of manufactured tobacco intended for exportation. The court, however, held the requirement to be a proper one to prevent fraud and not to amount to a tax on exports. "The stamp was intended," the court say, "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 to secure the faithful 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. It bore no proportion whatever to the quantity or value of the package on which it was affixed."

In Fairbanks v. United States, however, a stamp tax imposed on foreign bills of lading by the act of 1898 was held to be, in substance and effect, a tax on the articles included in the bills of lading, and, therefore, a tax on exports, and as such unconstitutional. The law had provided for a stamp tax of one cent on being exported, within the meaning of the Constitution. But a general tax, laid on all property alike, and not levied on goods in course of exportation, nor because of their intended exportation, is not within the constitutional prohibition. How can the officers of the United States, or of the States, know that goods apparently part of the general mass, and not in the course of exportation, will ever be exported? Will the mere word of the owner that they are intended for exportation make them exports? This cannot for a moment be contended. It would not be true, and would lead to the greatest frauds. It is true, as was conceded in Coe v. Errol, that the prohibition to the States against laying duties on imports or exports related to imports from and exports to foreign countries; yet the decision in that case was based on the postulate that when such imposts or duties are laid on imports or exports from one State to another it amounts to a regulation of commerce among the States, and, therefore, is an invasion of the exclusive power of Congress; so that the analogy between the two cases holds good, and what would be constitutional or unconstitutional in the one case would be constitutional or unconstitutional in the other."

65 92 U. S. 372; 23 L. ed. 657.

66 181 U. S. 283; 21 Sup. Ct. Rep. 648; 45 L. ed. 862.

ordinary bills of lading, and of ten cents on export bills of lading. To the contention that the tax was on the bills of lading and not one on the articles exported, the court say: "The fact that Congress has not graduated the stamp tax on bills of lading does not affect the question of power. The question of the power

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is not to be determined by the amount of the burden attempted to be cast. . Constitutional mandates are imperative. The question is never one of amount, but one of power. The applicable maxim is obsta principiis, not de minimis non curat lex." 67

In Cornell v. Coynes was sustained the imposition of the same manufacturing tax on an article manufactured for export, and in fact exported, as upon other similar articles not intended for export, the court saying that such a tax is not on the articles exported "but is only a tax or duty on the manufacturing of articles in order to prepare them for export." "The true construction of the constitutional provision," the opinion continues, "is that no burden by way of tax or duty can be cast upon the exportation of articles, and does not mean that articles exported are relieved from the prior ordinary burdens of taxation which rest upon all property similarly situated."

§ 278. Direct Taxes.70

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The Constitution provides that capitation and other direct taxes levied by Congress shall be apportioned among the States in pro

67 Four justices dissented. They say: "Here, the small duty imposed, without reference to the kind, quality, or value 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 is so plainly said; and no ground exists to impute a purpose by indirection to tax the articles exported." The dissenting justices also urge that the practice of the government for more than a century should be held controlling.

68 192 U. S. 418; 24 Sup. Ct. Rep. 383; 48 L ed. 504.

69 Two justices dissented, holding that inasmuch as there was no appreciable interval of time between the commencement of manufacture and the preparation for exportation, it could not be reasonably said that the articles had become a part of the general mass of property in the locality of manufacture, and as such subject to a tax that could be distinguished from a tax upon the articles as subject of export.

70 For a discussion of direct taxes with reference to the Territories and the District of Columbia, see Chapter XXVI.

portion to their respective populations. In a number of instances the constitutionality of federal taxes not thus apportioned has been questioned upon the ground that they were, within the constitutional meaning of the word, direct taxes. The decision of the Supreme Court in each of these cases in which this point has been raised has supplied an authoritative determination only as to the direct or indirect character of the particular taxes in ques tion. From these decisions, however, a judicial definition of direct taxes may be drawn which makes the term include all taxes levied upon property, real or personal, or upon the income derived from such property, and all capitation or poll taxes. A review of the cases will show that only within recent years has the court been willing to adopt this comprehensive definition, and, when it finally did so, the decision came as a surprise to very many of the lawyers and courts of the country.

In 1798 in Hylton v. United States"1 it was held that a tax on carriages was not a direct tax. Chase in his opinion said: "The Constitution evidently contemplated no taxes as direct taxes, but only such as Congress could lay in proportion to the census. The rule of apportionment is only to be adopted in such cases where it can reasonably apply; and the subject taxed must ever determine the application of the rule. If it is proposed to tax any specific article by the rule of apportionment, and it would evidently create great inequality and injustice, it is unreasonable to say that the Constitution intended such tax to be laid by that rule. . . . I am inclined to think, but of this I do not give a judicial opinion, that the direct taxes contemplated by the Constitution, are only two, to wit, a capitation, or poll tax, simply, without regard to property, profession, or any other circumstance; and a tax on land.”

Paterson in his opinion said: "Whether direct taxes, in the sense of the Constitution, comprehend any other tax, than a capitation tax and a tax on land, is a questionable point. If Congress, for instance, should tax, in the aggregate or mass, things that generally pervade all the States in the Union, then, perhaps, 713 Dall. 171; 1 L. ed. 556.

the rule of apportionment would be the most proper, especially if an assessment was to intervene. This appears from the practice of some of the States to have been considered as a direct tax. Whether it be so, under the Constitution of the United States, is a matter of some difficulty; but as it is not before the court, it would be improper to give any decisive opinion upon it. I never entertained a doubt that the principal, I will not say the only objects, that the framers of the Constitution contemplated as falling within the rule of apportionment, were a capitation tax and a tax on land."

Iredell, in his opinion, said: "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. That this tax cannot be apportioned is evident."

In Pacific Insurance Co. v. Soule a tax on receipts of insurance companies was held to be not a direct tax, the dicta in Hylton v. United States being relied upon as authority.

In Veazie Bank v. Fenno a tax on the circulating notes of state banks was held to be an indirect tax.

In Scholey v. Rew a tax on succession to real estate was held indirect, the tax being declared to be one not on the land, but upon the right of succession. The court say: "Whether direct taxes, in the sense of the Constitution, comprehend any other tax than a capitation tax and a tax on land is a question not absolutely decided, nor is it necessary to determine it in the present case, as it is expressly decided that the term does not include the tax on income, which cannot be distinguished in principle from a succession tax such as the one involved in the present controversy.

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72 7 Wall. 433; 19 L. ed. 95. 73 8 Wall. 533; 19 L. ed. 482.

74 23 Wall. 331; 23 L. ed. 99.

75 Citing Ins. Co. v. Soule, 7 Wall. 433; 19 L. ed. 95; Veazie Bank v. Fenno, 8 Wall. 533; 19 L. ed. 482.

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