Page:Harvard Law Review Volume 32.djvu/883

847 NOTES 847 the district court held the section unconstitutional for the reason that it was not a revenue measure and was an invasion of the police power reserved to the states.^ This judgment was reversed by the Supreme Court. It is clear when Congress was given the express power to lay excise taxes, with the single limitation of uniformity, it was given the implied power to use reasonable means of effectuating this granted power.* That this results in regulation within the states of matters over which the federal government has no direct power of legislation is inevitable, nor is it fatal, provided only the enactment affecting these matters, lying solely within control of the states, has some reasonable relation to the exercise of the granted power. Tax legislation is not invalidated by reason of the fact that the same business is regulated by the taxing power of the federal government and by the police power of the state government,^ nor by reason of the fact that motives other than revenue induced the government to act and the effect of its action accomplishes another end as well as the raising of revenue.^ As Mr. Chief Justice Fuller points out in In re Kolloch,'' the controlling factor and real test of constitutionality is, whether or not the regulations are ''means to effectuate the objects of the act in respect of revenue." If the answer be in the affirmative, though the incidental objects of the taxing measure be great and the encroachment on the states' sovereign power, marked, the enactments must still be declared within the federal taxing authority. Applying this test, Mr. Justice Day, speaking for the court, says: "The provisions of § 2 to which we have referred, aim to confine sales to registered dealers and to those dispensing the drugs or physi- cians, and to those who come to dealers with legitimate prescriptions of physicians. Congress with full power over the subject, short of arbi- trary and unreasonable action, which is not to be assumed, inserted these provisions in an act specifically providing for the raising of revenue. Considered of themselves, we think they tend to keep the traffic above- board, and subject to inspection by those authorized to collect the revenue. They tend to diminish the opportunity of unauthorized per- sons to obtain the drugs and sell them clandestinely without paying the tax imposed by the Federal law." Such an interpretation of the provisions as facilitating the collection of the revenue is far from easy. As the court below points out, we have a statute with a moral end as well as a revenue end, and " the responsi- bility is with the court to see that these ends are reached through a revenue measure and within the limits of a revenue measure." How does the requirement that a written order be given by a purchaser to the seller, which order must be preserved by the seller for two years, render effective the enforcement of the tax? Or the requirement that physicians keep for two years records of each distribution of the drug with the name and address of the distributee? Or that dealers file and ' United States v. Doremus, 246 Fed. 958 (1918). 6 See License Tax Cases, 5 Wall. (U. S.) 462 (1866). • In re KoUock, 165 U. S. 526 (1897). ^ IbU., 537.
 * See McCulloch v. Maryland, 4 Wheat. (U. S.) 316 (1819).