Page:Harvard Law Review Volume 9.djvu/231

203 POLLOCK y. FARMERS' LOAN AND TRUST COMPANY. 203 the power of direct taxation has been exercised, Congress did not see fit, for reasons of expediency, to levy a fax upon person- alty, this amounts to such a practical construction of the Consti- tution that the power did not exist, that we must regard ourselves bound by it." ^ And the further argument is insisted upon by the learned Chief Justice, that, if a tax upon the income derived from municipal bonds is unconstitutional because it is a tax on the power of the States, the tax upon all incomes derived from invested properties must also be unconstitutional, because it is a "direct tax " upon the sources from which the income is derived, and is not apportioned. ^ It js to be noted that in both the elaborate opinions delivered by the Chief Justice no case is cited by him in support of the conclu- sion of the Court. For it is to be observed that the three English cases, Attorney-General v. Queen Insurance Co.,^ Attorney-Gen- eral V. Reed,* and Bank of Toronto v. Lambe,^ cited to the point that an income tax is a "direct tax," are hardly apposite.^ In the first place, only the last one lays down the doctrine contended for, and that was apparently a self evident proposition, for the tax under consideration in that case was levied upon certain businesses by an act which professed to levy "certain direct taxes." The taxes under consideration in the first two cases were held not to be direct. In the second place, the question at bar was not what was or was not actually a direct tax, but what was a "direct tax" within the meaning of the Constitution of the United States. Furthermore, the assertion may be safely made that no case can be cited in support of the conclusion of the majority of the Court. In regard to the question of the jurisdiction of a court of equity to entertain such a bill as this, there could be, of course, no ques- tion, if it were not for Rev. Sts. § 3224, above referred to. That part of the opinion of the Court which deals with this point cannot be criticized or answered better or more forcibly than is done by Mr. Justice White in his remarkably lucid, logical and powerful dissenting opinion : " Neither of these authorities yiz. : Dodge v. Woolsey, 18 How. 331; Hawes v, Oakland, 104 U. S. 450], I submit, is in point. In Dodge v. Woolsey, the main question at issue was the validity of a State tax, and that case did not involve the Act of Congress to which I have referred [z^/>. : Rev. Sts. 1 158 u. S. 629. * 10 App. Cas. 141. » 158 U. S. 630. 6 12 App. Cas. 575. « 3 App. Cas. 1090. • « 158 U. S. 631.