upon taxation of the same property directly as such,' or includes property having a situs outside the State, it can no longer be regarded as the exaction of a tax for the protection of property but must stand or fall as a franchise tax; and as such it would be an unconstitutional interference with interstate commerce.2 $37. THE NATION MAY TAX ALL PERSONS AND THINGS UNIFORMLY AND EQUALLY. "The construction of the powers of Congress relative to taxation was brought before the Supreme Court in 1796, in the case of Hylton v. The United States. By the act of 5th June, 1894, Congress laid a duty upon carriages for the conveyance of persons, and the question was whether this was a direct tax, within the meaning of the Constitution. If it was not a direct tax, it was admitted to be rightly laid, under that part of the Constitution which declares that all duties, imposts, and excises shall be uniform throughout the United States; but if it was a direct tax it was not constitutionally laid, for it must then be laid according to the census, under that part of the Constitution which declares that direct taxes shall be apportioned among the several States, according to numbers. It was held, that a general power was given to Congress to lay and collect taxes of every kind or nature, without any restraint. They had plenary power over every species of taxable property except exports. But there were two rules prescribed for their government: the rule of uniformity and the rule of apportionment. Three kinds of taxes, viz., duties, imposts, and excises, were to be laid by the first rule; and capitation and other direct taxes, by the second rule. If there were any other species of taxes, as the court seemed to suppose there 1 Postal Tel. Cable Co. v. Richmond, 99 Va. 102, a city tax. might be, that were not direct, and not included within the words duties, imposts, and excises, they were to be laid, by the rule of uniformity or not, as Congress should think proper and reasonable.1 "The Constitution contemplated no taxes, but such as Congress could lay in proportion to census; and the rule of apportionment could not reasonably apply to a tax on carriages, nor could the tax on carriages be laid by that rule, without very great inequality and injustice. The notion. that a tax on carriages was a direct tax, within the purview of the Constitution, and to be apportioned according to census, would lead to the grossest abuse and oppression. This argument was conclusive against the construction set up, and the tax on carriages was considered within the power to lay duties; and the better opinion seemed to be that the direct taxes contemplated by the Constitution were only two, viz., a capitation, or poll tax, and a tax on land. The Court concluded that the tax on carriages was an indirect tax, and therefore, properly laid, pursuant to the rule of uniformity. Thus both rules for taxation by the national government prevent the recognition of the State in disregard of the individual. Independently of the reasoning in Hylton v. The United States,2 the Constitution provided that representation and taxation should go hand in hand; the people were to be represented in Congress according to population, and so were taxes to be laid. This is shown by the debates in the Constitutional Convention and in the conventions in the States called to ratify the Constitution. It is expressed in the Constitution itself. The power of the nation to lay a uniform tax on instruments of commerce has. 1 Kent's Commentaries, Pt. II, Lec. 16, Vol. I, p. 254. been finally adjudicated. The opportunity for the exercise of that power will be shown, and such exercise is not only proper but is amply safeguarded. "Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand, but each State shall have at least one.' This idea was confirmed in the Income Tax Cases: 2 "1 "The Constitution provides that representation and direct taxes shall be apportioned among the several States, according to numbers, and that no direct tax shall be laid except according to the enumeration provided for; and also that all duties, imposts, and excises shall be uniform throughout the United States. The men who framed and adopted that instrument had just emerged from the struggle for independence, whose rallying cry had been that taxation and representation go together. The States were about, for all national purposes embraced in the Constitution, to become one, united under the same sovereign authority, and governed by the same laws." $38. THE CONSTITUTION COMMANDS EQUALITY OF RIGHTS OF ALL INDIVIDUALS UNDER NATIONAL LAW. Equal rights for all under one government was the purpose of the founders." 1 Const. Art. I, sec. 2, cl. 3. 2 157 U. S. 429. See the Case, Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 39 L. Ed. 789, and argument of Edmunds: "Uniformity is equality." Discussion of the reversal is beside the point made above. See Choate's London Address on the Constitution of the United States. "The inhibition contained in the Fourteenth Amendment means that no agency of the State, or of the officers or agents by whom her powers are exerted, shall deny to any person within her jurisdiction the equal protection of the laws. That amendment was ordained to secure equal rights to all persons. To render its purpose effectual, Con-. gress is vested with power to enforce its provisions by appropriate legislation. Such legislation must act, not upon the abstract thing denominated a State, but upon the persons who are its agents in the denial of the rights which were intended to be secured. Such is the act of March 1st, 1875, forbidding unjust disqualification for jury service, and it is fully authorized by the Constitution." 1 § 39. A STATE CANNOT INTERFERE WITH ANY NATIONAL PURPOSE. STATE TAXATION OF INSTRUMENTS OF THE NATIONAL GOVERNMENT. The inability of the States to impede or control, by taxation or otherwise, the lawful institutions and measures of the national government, is the complement of the power of the national government to prevent this interference, in the interest of all, under the Fourteenth Amendment. It was discussed at length in McCulloch v. Maryland. In that case the State of Maryland had imposed a tax upon the Branch Bank of the United States established in that State, and, assuming the bank to be constitutionally created and lawfully established in that State, the question arose on the validity of the State tax. It was adjudged that the State governments had no right to tax any of the constitutional means employed by the government of the Union to execute its constitutional powers, nor to retard, impede, burden, or in any manner control the 1 Ex parte Virginia, 100 U. S. 339. operations of the constitutional laws enacted by Congress, to carry into effect the powers vested in the national government. "It was declared by the court, that it was not to be denied that the power of taxation was to be concurrently exercised by the two governments; but such was the paramount character of the Constitution of the United States, that it had a capacity to withdraw any subject from the action of this power, and it might restrain a State from any exercise of it which may be incompatible with and repugnant to the constitutional laws of the Union. The great principle that governed the case was that the Constitution, and the laws made in pursuance thereof, were supreme, and that they controlled the Constitution and laws of the respective States, and could not be controlled by them. It was of the very essence of supremacy, to remove all obstacles within its own sphere, and so modify every power vested in subordinate government as to exempt its own operations from their influence. A supreme power must control every other power which is repugnant to it. The right of taxation in the State extends to all subjects over which its sovereign power extends, and no further. The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission; but it does not extend to those means which are employed by Congress to carry into execution their constitutional powers. The power of State taxation is to be measured by the extent of State sovereignty, and this leaves to a State the command of all its resources, and the unimpaired power of taxing the people and property of the State. But it places beyond the reach of State power all those powers conferred on the government of the Union, and all those means which are given for the purpose of carrying those powers into execution. This principle relieves from clashing sovereignty; from |