Dobbins v. Erie County

ERROR to the Supreme Court of Pennsylvania. In the court of common pleas of Erie county, the plaintiff in error instituted an action against the commissioners of Erie county, the purpose of which was to have a decision on the right asserted by the commissioners of the county to assess and collect taxes on the office of the plaintiff, a citizen, and residing in Erie county, Pennsylvania, a captain of the United States revenue-cutter. The following case was stated and submitted to the court; either party to have the right to prosecute a writ of error.

'The plaintiff is, and has been, for the last eight years, an officer of the United States, to wit, captain of the United States revenue-cutter service; and ever since his appointment, has been in service in command of the United States revenue-cutter Erie, on the Erie station. He has been rated and assessed with county taxes for the last three years, to wit, 1835, 1836 and 1837, as such officer of the United States, for his office, as such, valued at $500; which taxes so rated and assessed and paid by the plaintiff, amount to the sum of $10.75. The question submitted to the court is, whether the plaintiff is liable to be rated and assessed for his office under the United States, for county rates and levies; if he is, then judgment to be entered for the defendants; if not, then judgment to be entered for the plaintiff for the sum of $10.75.

The court of common pleas gave judgment for the plaintiff, and the case was removed to the supreme court of Pennsylvania; in which court the judgment was reversed, and a judgment was entered for the commissioner of Erie county. The plaintiff, Daniel Dobbins, prosecuted this writ of error.

The case was submitted to the court, by Galbraith, for the plaintiff; and by Penrose, for the defendants, on printed arguments.

Galbraith, for the plaintiff in error.-The plaintiff was rated and assessed, under the construction given to the state law by the county officers, with a tax upon his office, created under a law of the United States. The act of congress entitled 'an act to regulate the collection of duties on imports and tonnage,' passed March 2d, 1799, § 97 (1 U.S. Stat. 699), empowers the president of the United States to cause revenue-cutters to be built. The 98th section provides, 'that there shall be to each of the said revenue-cutters, one captain or master, and not more than three lieutenants or mates,' &c. Its 99th section provides, 'that the officers of the said revenue-cutters shall be appointed by the president of the United States, and shall respectively be deemed officers of the customs,' &c., and prescribes their duties. Another act of congress, passed the 2d March 1799 (Ibid. 708-9), prescribes the compensation of the commissioned officers of the revenue-cutters, including the captains. The plaintiffs, as stated and admitted in the case, was a captain of the revenue-cutter Erie, commissioned as prescribed by the act of congress; and for that office, was rated and assessed under the state laws of the state of Pennsylvania, which may be found in Purd. Dig. 189 (Ed. 1836); and which authorizes the assessment of a state or county tax upon 'all offices and posts of profit.' Does this mean 'offices and posts of profit' with which the state or state laws have nothing to do in their creation? The supreme court of the state has decided in this case, that it does, in 7 Watts 513; and the question here presented is, whether or not that decision be correct. The supreme court of the state has decided in favor of the validity of the state law, in the construction given to it by the financial officers acting under the authority of the state, and therefore, its decision is the subject of examination and revision here, as decided by this court in Weston v. City Council of Charleston, 2 Pet. 449.

The supreme court of Pennsylvania did not touch the point in question, or that presented in the case. No distinction is drawn between an office created by and under the state laws, and one which is the creature of the laws of the national government. It is simply decided, that an office is the subject of the taxing powers of the state officers, under the laws of the state; which is not disputed, so far as relates to offices created by or controlled under state legislation. It is asked, if this office of captain of a revenue-cutter, appointed and commissioned under the authority of the acts of congress, it not one of 'the means employed by the government of the Union for the execution of its powers?' and if so, if it is not brought within the principle of the case of McCulloch v. State of Maryland, 4 Wheat. 316; and again reviewed in 9 Ibid. 738? These cases clearly establish the principle, that the state sovereignty, the state laws, and the acts of the state officers, under its laws, can only extend to such things as exist by its own authority, or are introduced by its permission; and cannot extend to, or operate upon, an office created by the exclusive authority of the United States, and under the control of the laws of the Union alone; and which cannot be trammelled or interfered with by the state authorities.

Penrose, for the defendants.-Captain Dobbins was a 'taxable person,' a citizen of Erie county, who enjoyed the privilege of a citizen, and the protection of the state government. He was clearly, as such, liable to taxation. In determining the amount of the tax, the sovereign state had a right to say, arbitrarily, that he should pay so much, or, which is more just, to ascertain his income, and by rating that, fix a tax proportioned to it. There is no doubt, that the office or post which he held, fell within the descriptive terms of the statute, terms to ascertain this 'rate' of the tax to be paid by the 'taxable person,'-'all offices and posts of profit,' without qualification. The office of president judge of a judicial district is within the act, notwithstanding the constitutional provision in regard to the salary of such officers. Commissions, &c. v. Chapman, 2 Rawle 73.

Having inquired into the nature of the tax, and ascertained that the office or post held by the plaintiff in error falls within the descriptive terms of the statute, we come to the question. Is this statute invalid, on the ground of its being repugnant to the constitution or laws of the United States? On this point, we stop to inquire, what is this power of taxation in a state, its nature and extent. 'It is an incident of sovereignty, and is co-extensive with that of which it is an incident.' 'It is called a sacred right;' 'it is admitted to be essential to the very existence of government.' 'It is so ample, that it may be exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it.' 'There is no limit on the exercise of the right, no guard against the abuse of the power; but in the structure of the government, and the discretion of the representative of the people.' 'It is not confined to the people and property of the state; it may be exercised upon every object brought within its jurisdiction.' 'The power of legislation, and consequently, of taxation, operates on all persons and property belonging to the body politic.' 'It is an original principle, which has its foundation in society itself; it is granted by all, for the benefit of all.' 'However absolute the right of an individual may be, it is still in the nature of that right, that it must bear a portion of the public burdens, and that portion must be determined by the legislature.' McCulloch v. State of Maryland, 4 Wheat. 428; Providence Bank v. Billings, 4 Pet. 563; Biddle v. Commonwealth, 13 Serg. & Rawle 409; Brown v. State of Maryland, 12 Wheat. 419.

What are the limitations on this great prerogative power, which it is admitted resides in the states, and does this case fall within any such limitation? These limitations are either express or implied.

1. The express limitation is found in the constitution of the United States, § 10, art. 1, of that instrument. 'No state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.' And there is a like prohibition to laying a duty on tonnage. It was wisely judged, that no other limitation than this was necessary, to secure the objects of government, and guard the citizen from oppression. He is the common constituent of the representative in the state, as well as the national government. Besides, by reserving to the general government the exclusive right of laying imposts or duties, congress had an ample source of revenue, obviously, the least oppressive to the people. For these imposts, though they be called in strictness an indirect tax, are rather a voluntary retribution by such as chose to purchase the imported article on which it is levied. And although the power of direct taxation is not taken from, or rather is given to, the general government, to be used in these cases of national emergency, when a patriotic people will bear almost any burden without a murmur, yet it is obvious, from the fact that the states are excluded from laying imposts, that this is the great source from which it was intended, except under extraordinary circumstances, the general government should derive its revenue; and that the power of direct taxation, without any other limitation, should be left to the states. It is their natural, their only resort. The limited purposes and objects of the state governments, immediately affecting the interests of the people, will, of course, make them submit with cheerfulness to a direct tax for the support of such government; which they would not so readily endure, except in emergencies referred to, for the more onerous support of the national government.

The law of the state of Maryland, requiring an importer of foreign goods by bale or package, to take out, and pay $50 for, a license to sell his goods, fell within this prohibition, and was decided to be repugnant and unconstitutional. Brown v. State of Maryland, 12 Wheat. 419. But even there it was held, that the words of this prohibition 'ought not to be pressed to their utmost extent.' And when the importer has so acted on the thing imported, that it has become mixed up with the mass of property in the country, it has lost its distinctive character as an import, and is subject to taxation. And it is upon this principle, that the law of the state of Pennsylvania, imposing a duty on retail-dealers was ruled to be in accordance with the constitution. Biddle v. Commonwealth, 13 Serg. & Rawle 409. Analogous to it, is the principle on which the case of the Commissioners v. Chapman, 2 Rawle 73, was ruled. In that case, the office of president judge of a judicial district was decided to be within the act, notwithstanding the constitutional provision in regard to the salary of such officers. The opinion of the court in that case is respectfnlly referred to.

2. The implied limitations on the power of taxation. It is admitted, that it was urged, that as the convention which formed the constitution had imposed an express limitation, no other limitation could be established by inference. And this view was strongly fortified by the contemporaneous exposition of the Federalist, the eminent authors of which asserted, 'that the right of taxation in the states is sacred and inviolable,' 'with the sole exception of duties on imports and exports;' that 'they retain the authority in the most absolute sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of the constitution.' It may be conceded, that it was pressing too far the argument from this source, to contend for 'that construction of the constitution that would place within the reach of the states those measures which the government might adopt for the execution of its powers.' But it is a strong argument to show the high character, and wide extent of this power of taxation, and excludes the inference of any limitation upon it, which does not clearly fall within the essential principle of preventing a control by the states of such measures.

It was very apparent, that a like power of taxation in the general government, created no such inference. The authority is co-equal. Federalist. A power conferred upon congress does not per se exclude the states from the same power, unless it be in its nature exclusive. 5 Wheat. 48. So, the power of congress to levy taxes does not exclude the states from a similar power. Gibbons v. Ogden, 9 Wheat, 201. The great principle of these implied limitations is, that the states, in the exercise of the high prerogative power of taxation, should not be permitted to reach and control those measures necessary and proper for the execution of the powers vested by the constitution in the government of the United States. This is the ruling principle of all the cases.

It being judicially ascertained, that congress possessed the power to incorporate a bank of the United States; it was constitutional, because it was an instrument, and the means employed by the government of the Union for the execution of its powers. The power to tax such instrument, and these means, is the power to destroy; and therefore, the one is repugnant to the other. McCulloch v. State of Maryland, 4 Wheat. 428; Osborn v. United States Bank, 9 Ibid. 867. It was on this principle, that it was ruled, that 'a tax imposed by a law of any state of the United States, or under the authority of such a law, on stock issued for loans made to the United States, is unconstitutional.' The creation of the stock was a measure necessary and proper for the execution of the power 'to borrow money on the credit of the United States.' It was an instrument for the execution of that power. Weston v. City Council of Charleston, 2 Pet. 449, 465. So, neither can a state tax any other instrument employed by the government for the execution of its powers. It cannot tax the mail; it cannot tax the mint; it cannot tax patent-rights; it cannot tax the judicial process. But this implied limitation on the high prerogative power of taxation, is not pressed to extreme consequences, which would in fact destroy it; but stops with resistence of a direct repugnant enactment of the state; it is not carried one inch beyond this. Hence, a state may not tax a bank of the United States; but it may impose a tax on the citizens of such state holding stock in such bank, and fix the amount of the tax by express reference to the value of such stock. So it may tax the real estate held by the bank within the state. It cannot tax the mint which is the instrument, but it may tax the income of the superintendent, although that income may be made up, in whole or in part, by the salary of his office. Indeed, unless this be permitted, he might escape taxation; as any tax, if the argument be carried to an extreme, may affect that income. It may not tax the mail, but it may the postmaster. It may not tax the patent-rights, but it may the income of the patentee, derived from the sale of patented articles. Such is the peddler's tax or license. It may not tax judicial process, but it may the clerk who issues it. The former is an instrument for the public good; the income of the officer is his private emolument, with which the public has nothing to do.

A contractor, says Ch. J. MARSHALL, for supplying a military post with provisions, cannot be restrained from making purchases within any state, or from transporting them to any place at which the tropps are stationed, nor could he be fined or taxed for doing so. But the property of the contractor may be taxed as the property of other citizens. Osborn v. United States Bank, 9 Wheat. 867. That property may be the profits of his contracts. It might be contended, that the tax diminished his ability to execute such contract. The limitation is not carried to such consequences. A tax on government stock was decided, as we have seen, to be unconstitutional. Weston v. City of Charleston, 2 Pet. 449. But it seems to have been admitted, in that case, that if the tax had been an income tax, although the income was in part or in the whole made up of interest on this stock, such tax would have been constitutional. Such appears from the opinion of Justice JOHNSON, who dissented from the majority of the court.