CHAPTER XL.

THE GENERAL POWERS OF CONGRESS.

§ 259. General Powers.

In the chapters which are immediately to follow will be taken up seriatim the legislative powers of Congress except in so far as these powers have been considered incidentally elsewhere in this treatise.

In addition to its legislative powers the Houses of Congress have certain other powers, judicial or executive in character, such as, for example, with reference to impeachments, to punishing their members for disorderly conduct, or their expulsion if necessary, the determination of contested elections, etc. Each House of Congress has also, it has been held, the power to obtain the information necessary for an intelligent exercise of its lawmaking power, and for this purpose to summon witnesses, and compel the production of documents, and to punish as contempt disobedience to orders thus given. These non-legislative duties are discussed elsewhere in this treatise, and especially in the chapters dealing with the Separation of Powers.

In some cases the powers granted by the Constitution are also made obligations, and, in general, it may be said that where legislation is necessary to make effective the provisions of the Constitution there is laid upon Congress the constitutional obligation to enact this legislation. At the same time it must be said that this obligation is an "imperfect" one in that no legal means exist for compelling its performance or providing for what shall be done in the event of its non-performance. Thus the Constitution provides that "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish." Should Congress fail by legislation to establish these inferior judicial tribunals and to clothe them with jurisdiction, there would be no constitutional means of compelling it to do so. Indeed, by

failing as well to provide for the appointment and remuneration of Justices of the Supreme Court, Congress might render impossible the exercise of any federal judicial power whatever. Once established the Supreme Court, by the immediate effect of constitutional provision, has the original jurisdiction provided for in Section II of Article I, but it is unable to exercise any appellate jurisdiction by way of appeals either from the state or lower federal courts except as Congress has by statute provided.

This is but a single illustration of many that might be given of the manner in which the existence and administration of the federal government is absolutely dependent upon the action of Congress. For it may be laid down as a principle which admits of no exceptions that no legal means exist for compelling a legislative body to enact a given piece of legislation, or, indeed, to perform any of its functions.

Though, in many respects, not self-executory, and the obligations created by its provisions not enforceable by legal process, the federal Constitution is, it is to be repeated, in all other respects a law and directly enforceable as such in the courts of the land. It is, as has been already said, a law legislatively enacted by the state legislatures or the state conventions which, quoad hoc acting as a national law-making body, established it and ratified the amendments to it.

CHAPTER XLI.

FEDERAL POWERS OF TAXATION.

$260. Taxes Defined.

Taxes have been defined by an eminent authority to be "burdens or charges imposed by the legislative power upon persons or property to raise money for public purposes." The same author in another work observes that they "differ from forced contributions, loans, and benevolences of arbitrary and tyrannical periods in that they are levied by authority of law, and by some rule of proportion which is intended to insure uniformity of contribution, and a just apportionment of the burdens of government."2

The power to tax is ordinarily spoken of as an incident of sovereignty, or, as a sovereign power. A more exact statement is, however, that inasmuch as the raising of a certain amount of revenue is essential to the existence and operation of a public governing body, that body has, even in default of express constitutional grant, an implied power to compel those subject to its authority to contribute the financial means necessary for its support.

The levying of a tax, that is to say, the determination that a given tax shall be imposed, assessed and collected in a certain. manner, is a legislative function. In Meriwether v. Garrett3 the court say: "The levying of taxes is not a judicial act. It has no elements of one. It is a high act of sovereignty, to be performed only by the legislature upon considerations of policy, necessity and the public welfare. In the distribution of the powers of government in this country into three departments, the power of taxation falls to the legislative. It belongs to that

1 Cooley, Constitutional Limitations, 7th ed., p. 678.

2 Taxation, Ch. I.

3 102 U. S. 472; 26 L. ed. 197.

department to determine what measures shall be taken for the public welfare, and to provide the revenues for the support and due administration of the government throughout the State in all its subdivisions. Having the sole power to authorize the tax, it must equally possess the sole power to prescribe the means by which the tax shall be collected, and to designate the officers through whom its will shall be enforced."

The determination of the precise amount of the tax which each individual or each piece of property shall pay according to the general rule legislatively laid down, is an administrative act. The determination whether the legislative rule is, constitutionally speaking, a proper one, and whether the administrative officials have properly followed it, as well as observed all the other requirements of law, is, of course, a judicial function. Thus the administrative official must in all cases, in his assessments both as to classes of persons and kinds of property, and as to rates of taxation, be guided by the law. Upon the other hand the legislature, when levying ad valorem taxes, has not the power itself, generally speaking, to declare the value of a specific piece, or of specific pieces of property for taxation purposes. Where, however, taxes are laid not according to values of property, but upon persons, as a capitation tax, or upon occupations, as license fees and tolls, or upon documents, as stamp duties, or upon number or quantities of goods ("specific" taxes), the legislature fixes in each case the amount of the contribution.

§ 261. Taxation and Eminent Domain.

The levying and collection of taxes amounts, of course, to the taking of private property for a public use, but the taxing power is distinct from that of eminent domain. When property is taken in exercise of the latter power the Fifth Amendment requires that the Federal Government shall make just compensation. When, however, property is taken under the taxing power the 4 This question will be further considered in connection with the subject of special assessments.

persons so taxed are held compensated by the special benefits received. Cooley observes that while taxation and eminent domain rest upon substantially the same basis in that they both imply the taking of private property for the public use, the compensation made is different in the two cases. "When taxation takes money for the public use, the taxpayer receives, or is supposed to receive, his just compensation in the protection which government affords to life, liberty, and property, in the public conveniences which it provides, and in the increase in the value of possessions which comes from use to which the government applies the money raised by the tax; and these benefits amply support the individual burden."

§ 262, The Extent of the Taxing Power.

The power to tax is, from its very nature, one of the most important powers possessed by the State. Aside from express constitutional limitations, the power places every person, every occupation, and all forms of property subject to such pecuniary burdens as the legislature may see fit to impose, the manner of apportioning and enforcing the collections of the contributions levied being within the discretion of the law-making body which imposes them.

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A classic statement of the extent of the taxing power is that of Marshall in MeCulloch v. Maryland. Marshall says: The power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation. The people of a State, therefore, give to their government a right of taxing themselves and 5 Const. Lim., 7th ed., p. 715.

64 Wh. 316; 4 L. ed. 579.