Page:Immigration and the Commissioners of Emigration of the state of New York.djvu/193

Rh of the majority in Smith vs. Turner, but the soundness of the doctrine is disputed on the ground that the uniformity of duties, imposts, and excises throughout the Union is incompatible with their imposition by other than the general power. This objection must be regarded as exploded by the subsequent practice of the Government in the matter of excises. That practice proceeds on the assumption that the mandate that excises must be uniform is addressed to Congress only. C. J. Taney, also, of the minority in Smith vs. Turner, is likewise clear (7 Howard, 479) that Congress takes all its power of indirect taxation from this clause, and none (except the right to tax slaves imported) from any other, and says that this view, under which the Constitution was adopted, has been frequently confirmed by the Supreme Court (Marshall, C. J., in Billings vs. Providence, 4 Peters, 561). The same view is taken by Woodbury, J., also of the minority in Smith vs. Turner (7 Howard, 549)

It would appear to be still an open question, unless impliedly closed by the majority vote in Smith vs. Turner, whether Congress derives its power of indirect taxation from other sources than the present clause. If this is the sole source, it is clear that it is not exclusive, because the power of the States to tax indirectly has never been disputed, and has been constantly exercised. And if this is the sole source of the taxing power of Congress, that power, as applied to immigrants, is not only not exclusive in Congress, but it is probably not vested in Congress at all. The power to levy taxes, duties, imposts, and excises is not general, but is restricted to such as are laid for the payment of the debts or common defence or general welfare of the United States.

The general welfare of the United States does not include the protection of the tax-payers of New York from exorbitant poor taxes. See 9 Wheaton, 199, 206, cited by Woodbury, J., in Smith vs. Turner, 7 Howard, 550. Now, if Congress is without power to effect an end necessary for the public safety and comfort, it cannot be pretended that that power is taken from the States.

The provision that duties, imposts, and excises shall be uniform throughout the United States is invoked by McLean, J., to prove that the power to impose them must necessarily be exclusively in Congress. This point has been already referred to. Judge