Page:Harvard Law Review Volume 5.djvu/355

339 THE SUGAR BOUNTIES. 339 In support of this contention, the attorney-general quotes from Cooley on Taxation (2d ed., p. 108), as follows : In considering the legality of the purpose of any particular tax, a question of first importance must always concern the grade of the gov- ernment which assumes to levy it. The " public " that is concerned in a legal sense in any matter of government is the public the particular gov- ernment has been provided for ; and the " public purpose " for which that government may tax is one which concerns its own people, and not some other people having a government of its own, for whose wants taxes are laid. There may, therefore, be a public purpose as regards the Federal Union, which would not be such as a ba c is for State taxation, and there may be a public purpose which would uphold State taxation, but not the taxation which its municipalities would be at liberty to vote and collect. . . . The grade of the government is also important for another reason. A municipal government is one of delegated and limited powers, whose authority will receive a somewhat strict construction, rendering it necessary that it shall find the purposes for which it may tax clearly and unmistakably confided to its charge by the State. . . . It is otherwise with the State, which has all the power of taxation not withheld from exercise in the making of the State and Federal Constitutions, and in sup- port of whose action, consequently, the most liberal intendments are to be made. It is otherwise with the Federal Union also ; for though its ■powers are not general like those of the State, but are limited and defined by the Federal Constitution, yet as they concern the most im- portant matters of government, and relate to subjects not of domestic concern merely, but of international intercourse, and to other matters which sometimes call for broad and comprehensive views, and make a policy of liberal expenditures wise and statesmanlike, it would be neither reasonable nor prudent to subject- its action in the matter of taxation to critical rules. That which it decides to be an object of public expendi- ture must generally be so accepted, and error in its action must be cor- rected by discussion and through public opinion and the elections. The attorney-general rests this branch of his case upon the foregoing extracts. It seems by no means clear that they are altogether favorable to his view. It is pertinent to observe that the State authorities which are said to " have no application " are by no means "all of them cases of municipal taxation." It is true that the taxation in question was to be made by the machinery of towns, cities or counties. But, in every instance, the taxes were imposed under express authority of the States, which are said to have " all the power of taxation not withheld from exercise in the making of the State and Federal Constitutions." 1 It sufficiently appears, also, from the extracts in question, that, in the opinion of the writer, Federal taxation, like State taxation, must be for a 1 See also U. S. v. Railroad, 17 Wall. 322, 329.