Page:Immigration and the Commissioners of Emigration of the state of New York.djvu/192

164 shall demand and be entitled to receive, and in case of neglect or refusal to pay shall sue for and recover, in his official name, from the master of every vessel that shall arrive at the port of New York from foreign ports, one dollar for each steerage passenger, mate, sailor, or mariner.

The subject of this enquiry is complicated with, and depends on, the construction of the first, second, fourth, and fifth clauses of the eighth section, the first and fifth clauses of the ninth section, and the second clause of the tenth section of the first article; of the first clause of the second section of the fourth article of the Federal Constitution, and with the ninth and tenth articles of the amendments to that instrument.

The first and second clauses of the eighth section of the first article, so far as in point here, read as follows:

"1. The Congress shall have power,

"2. To lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States."

Upon the construction of this section, the point is made that the collection of taxes is a power substantively vested in Congress, and not incident to the power to regulate foreign and inter-State commerce. The regulation of commerce vested in Congress was not, therefore, understood by the framers of the Constitution to apply to any species of taxation, and is not to be resorted to for any argument respecting the continuance in or ademption from the several States of the power to impose any kind of taxes. The Federalist, No. 32, asseverated that the several States would retain their taxing power absolutely undiminished except by the express prohibitions on State taxation, which is incompatible with an implied curtailment of those powers by virtue of the clause vesting Congress with the regulations of commerce.

This point is strongly put by Daniels, J., in his dissenting opinion in Smith vs. Turner, 7 Howard, U. S. R., p. 429, who cites Gibbons vs. Ogden, 9 Wheaton, 201, in support of it.

The correctness of the citation is admitted by McLean, J.,