Page:Harvard Law Review Volume 9.djvu/232

204 204 HARVARD LAW REVIEW, § 3224, Stat. 1867]. Hawes v. Oakland was a controversy between a stockholder and a corporation, and had no reference whatever to taxation."^ ''The decision here is, that this court will allow, on the theory of equitable right, a remedy expressly forbidden by the statutes of the United States." ^ There can be no question as to the unconstitutionality of the tax upon the income derived from State and municipal bonds or upon the salaries of State or municipal officers. One sovereignty has no power of taxation on or over the instrurnents of government of another ; and there was no controversy or difference, and there can be none, as to this, or as to the lack of power in the States to burden with taxation the instrumentalities of interstate or foreign commerce.^ But the argument deduced from this in the opinion of the Court, to the effect that, if such taxation is unlawful because it creates a burden upon a subject over which there is no right or power of taxation, it must be direct taxation, and therefore the tax upon all incomes derived from invested properties must also be ''direct" and unconstitutional because not apportioned among the several States, is fallacious ; indeed, it is doubly fallacious.^ In the first place, the attempted taxation of the instruments of gov- ernment of another sovereignty, or the attempted placing of a bur- den by a State upon the instrumentalities of interstate or foreign commerce, has never been held to be direct taxation. That ques- tion could not possibly arise, for it is sufficient to make the tax in- valid, if any burden, howsoever remote, is imposed. In the second place, it is one thing to hold that where there is no right of taxation at all, as in the case of one government taxing the instrumentalities of another sovereignty, any tax, however indirect, upon any money or property derived in any way from the legitimate exercise of those governmental functions is a burden upon them ; and it is quite another thing to hold that, given the power and right to lay taxes upon certain subjects in certain ways, a tax is unconstitu- tional because it lays a burden indirectly, which it could not lay directly except by a different method.^ There can be no question that the government of the United States has the power and the right to lay and collect taxes in some way upon all the property within its jurisdiction and subject to its sovereignty, and no valid I157U. S. 609. 2157U. S. 611. 3 157 U. S. 646; 158 U. S. 630; 158 U. S. 665. M57 U. S. 584; 158 U. S. 630. 6 137 u. S. 646; 158 U. S.665 ; 158 U. S. 691.