Page:The Supreme Court in United States History vol 1.djvu/173

Rh 3 Dallas, 171, in which for the first time it exercised its function of passing upon the constitutionality of an Act of Congress. It is a most singular circumstance that a case of such consequence, involving the question whether a Federal tax on carriages was a direct tax within the meaning of the Constitution, should have been presented on an agreed statement the facts in which were fictitious, should have been actually a moot case since the counsel on both sides were paid by the Government, and should have been decided by only three of the six Judges; yet all these features were present in the case. The defendant Hylton formally stated that "my object in contesting the law upon which the cause depends" is "merely to ascertain a constitutional point and not by any means to delay the payment of a public duty/' ^ The Government in its agreed facts made the fictitious allegation that the defendant kept one hundred and twenty-five chariots "exclusively for the defendants' own private use and not to let out to hire/' And the Government entered into a formal stipulation to pay the counsel fees on both sides for the argument in the Court, since, as Attorney- General Bradford wrote to Hamilton, the appellant's counsel had advised him "to make no further argument and to let the Supreme Court do as they please, and that in consequence of this advice no counsel will ap- pear in support of the writ of error. Having succeeded in dividing the opinion of the Circuit Court, he wishes to prevent the effect which a decision of the Supreme

^ This fonoAl statement by Hylton does not appear in Dallas ReporU but is on the files of the Court. 7th Cong., 1st Sest, The fictitious allegation in the agreed facts was undoubtedly to give jurisdiction to the Circuit Court in the sum of $2000, the tax and penalty for one chariot being only $16, and the agreed facts reciting that : "If the Court adjudged the defendant to be liable to pay the tax and fine for not doing so and for not entering the carriages, then judgment shall be entered for the plaintiff for $8000 to be dischaiged by the payment of sixteen dollars, the amount of the duty and penalty."