Slike strani
PDF
ePub

forbid the introduction of intoxicating liquor, but recognized the right of transportation and permitted the State law to operate upon the liquor only when its carriage was completed, and when it had reached its destination and been delivered to the consignee. (Rhodes v. Iowa, 170 U S. 412.)

The Wilson Act has been further considered by the courts in litigation arising out of the South Carolina Dispensary Act. This law forbade the sale of intoxicating liquor, within the State, by any private individuals. It prohibited the importation of liquor for use by the importer, but permitted the use of domestic liquor. It vested in the State the sole right to sell liquor. Officers were appointed throughout the State to dispense liquor at convenient places, and the profits arising from the business were appropriated to the State, county, and municipal treasuries. This law was declared void by the Supreme Court of South Carolina. (McCullough v. Brown, 41 S. Carol. 220 ; Prentice and Egan, Commerce Clause, p. 80.) The decision in that case has since been overruled, but some of its doctrines have been approved of in Federal courts. This Dispensary Act, it is said, is not a proper exercise of the police power so far as it discriminates between inter-state and domestic commerce, in articles the manufacture and use of which are lawful. A State could not forbid the importation of liquor for use by the importer while it permitted the use of domestic liquors. (Donald v. Scott, 67 Fed. Rep. 854 and 165 U.S. 558.) In the case of Vance ». Vandercook Co., 170 U.S. 438, it was held that the fact of the State law permitting the sale of liquor, subject to certain restrictions, did not prevent the law from being an exercise of police power. The Federal Act, it was said, was passed to allow State regulations to operate on the sale of original packages of intoxicants brought from other States ; it was not intended that a State should be unable to control the liquor traffic except by prohibition. The effect of the decision in this case is that the importation of intoxicating liquors, for use by the importer, cannot be prohibited under the Wilson Act, but that upon their importation for sale they come within the operation of the Act and State laws founded thereon. (Prentice and Egan, Commerce Clause,

Section 113 may now be compared with the Wilson Act, on which it is founded. It will be at once seen that it is not intended to authorize the States to prohibit the introduction of intoxicating liquids ; once introduced they cannot be prevented from reaching their destination - the consignee. What the section provides is that intoxicating liquids, upon passing into any State for use, consumption, sale, or storage, shall become subject to the laws of the State as if they had been produced in the State. They are liable to the same licensing laws as locally produced intoxicants ; they are liable to the same restrictive and regulating laws ; they are liable to the same prohibitive laws. Their sale may be restricted to certain limited purposes ; or to certain defined localities ; it may be allowed to be conducted by certain qualified persons only; or it may be forbidden altogether. The only condition to the legality of the liquor laws of a State is that they must apply without discrimination to intoxicants locally produced as well as to those imported.

The liquor laws of a State would only be allowed to apply to intoxicants passing into a State for use, consumption, sale, or storage. They would not imply to intoxicants passing into a State for the purpose of being transported directly and without the intervention of a sale into another State. (See notes, $ 163, pp. 528, 548, supra.)

PROHIBITION AND LOCAL OPTION. – The Federal Parliament has not control over the liquor traffic as extensive as that exercised by the Parliament of Canada, which has power to regulate “trade and commerce" generally. The Federal Parliament can deal only with trade and commerce with other countries and among the States. This excludes the trade and commerce which begins and ends in a State. A federal law authorizing the establishment of a system of local option under which the sale of liquor could be prohibited in defined areas, or restricted to detined areas, would not be a law relating to trade and commerce “ among the States," but a law relating to trade and commerce in those defined localities within the States."

p. 81.)

The Federal Parliament has no power to directly prohibit the manufacture of intoxicants or to establish a local option system in any State. It has, however, the exclusive power to impose duties of customs and excise. This will enable it to tax heavily, or lightly, all intoxicating liquids imported into the Commonwealth, or produced in any State--a power which may be exercised in a manner calculated to influence the liquor traffic in a material degree (sec. 90). The Federal Parliament has also the exclusive authority to grant bounties on the production or export of goods (sec. 90). This will enable it, if thought necessary, to directly encourage the manufacture of intoxicants by a pecuniary subsidy. The Parliament of a State would probably be able, under sec. 113, to prohibit the production, or sale, of intoxicants within the State limits, but should the Federal Parliament pass a law offering bounties for the production or export of those intoxicants, an inconsistency would arise, and the State law in that case would be invalid to the extent of the inconsistency (sec. 110). (See this question discussed, p. 548, supra.)

States may not raise forces. Taxation of property of Commonwealth or State.

114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain"57 any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth+58, nor shall the Commonwealth*5o impose any tax on property of any kind belonging to a State.

UNITED STATES.- No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace

or engage in war unless actually invaded, or in such imminent danger as will not admit of delays. - Const. Art. I., sec. X.,

sub-s. 3. CANADA.- No lands or property belonging to Canada or any Province shall be liable to

taxation.-B.N.A. Act, 1867, sec. 125. HISTORICAL NOTE. -As introduced in the Sydney Convention of 1891, the clause

ran:

“A State shall not, without the consent of the Parliament of the Commonwealth, impose any duty of tonnage, or raise or maintain any naval or military force, or impose any tax on any land or other property belonging to the Commonwealth.”

In Committee, on Sir Samuel Griffith's motion, the words “ nor shall the Commonwealth impose any tax on any land or property belonging to a State” were added. (Conv. Deb., Syd. [1891), 883.) At the Adelaide session, 1897, the clause was introduced in substantially the same form. In Committee, Mr. Henry asked how the words “ tonnage dues” would affect Marine Boards and Harbour Trusts, which were dependent for revenue on tonnage dues. Mr. Barton thought the words unnecessary, since if they were payments for services they ought not to be interfered with, and if taxes they would be unconstitutional as interfering with free trade. The words were omitted. At the Melbourne session, the clause was shortly discussed. (Conv. Deb., Melb., p. 653.) A verbal transposition was made after the fourth report.

§ 457. “ Raise or Maintain.” A State is forbidden without the consent of the Federal Parliament to raise or maintain any naval or military force. This inhibition, coupled with sec. 51– vi., has the effect of conferring on the Federal Parliament exclusive power with respect to naval and military forces. The negation in this section is so strong, “no State shall raise or maintain,” that it begins to operate immediately on a colony becoming a State ; thereafter it will render the raising maintenance of naval and military forces by a State absolutely illegal. The inhibition, however, is accompanied by the condition that it may be removed with the consent of the Federal Parliament.

Sec. 69 provides that the departments of naval and military defence in each State shall be transferred to the Commonwealth on a date to be proclaimed by the GovernorGeneral. A question arises as to the position of the existing naval and military forces in the different colonies during the period after the establishment of the Commonwealth and before the actual transfer. No permissive law can be passed until the Parliament meets; and it can hardly be intended that during that interval the maintenance of the existing forces is illegal. It has been suggested, in order to meet this difficulty, that “ maintain " should be read as subsidiary to “ raise," so that the words should mean "no State shall raise or (having raised) maintain.” The difficulty could, of course, be evaded by the transfer of the defence departments simultaneously with the establishment of the Commonwealth.

Belonging to

$ 458. “Impose any Tax on Property.

the Commonwealth."

The immunity of Commonwealth property from taxation by the States is secured by this section. A State may not impose any tax on property of any kind belonging to the Commonwealth without its consent given through the agency of the Federal Parliament. The property of the Commonwealth will include all revenues derived from taxation (sec. 51— ij.); money borrowed on the credit of the Commonwealth (sec. 51– iv.); land, places, buildings, and chattels acquired by the Commonwealth from the States, or from private individuals (sec. 51–xxxi.); such railways as may be taken over by the Commonwealth from the States (sec. 51–xxxii.); such railways as may be constructed or extended by the Commonwealth for the States (sec. 51–xxxiii.); revenue derived from fines, penalties, fees, and forfeitures imposed by Federal laws (sec. 53); departmental buildings and property which will be transferred to the Commonwealth by the States, such as post and telegraph buildings and materials, military and naval works, fortifications, equipments, war materials, war vessels, &c., light-house and light-ships, beacons and buoys, and quarantine stations (sec. 69); and property of any kind used in connection with departments taken over (sec. 85—i.).

Under the Constitution of the United States, which contains no express inhibition like this, it has been held that the States cannot tax the property and lawful agencies and instrumentalities of the Federal Government, no matter in whose hands they may be found. McCulloch v. Maryland, 4 Wheat. 316 ; Dobbins v. Commissioners of Erie County, 16 Pet. 435 ; Bank Tax Cases, 3 Wall. 573 ; Compare Leprohon v. City of Ottawa, 2 Ont. App. 522.)

A stock of the United States which constitutes the whole or a part of the capital stock of a State bank is not subject to State taxation. Such taxation would be a tax upon the exercise of the powers conferred upon Congress. If such power were recognized in the States it might be carried to such extent as to, in effect, destroy this power in Congress. (The People of New York v. Commissioners of Taxes, 2 Wall. 200. Baker, Annot. Const. 17.)

Securities of the United States are exempt from State taxation, and this immunity extends to the capital stock of a corporation if made up of such public funds. (Provident Inst. v. Massachusetts, 6 Wall. 611; National Bank r. Kentucky, 9 Wall. 353. Id. 18.)

United States certificates of indebtedness issued by the general Government directly to creditors are subject to taxation by the States. (The Banks v. Mayor, 7 Wall. 16. Id.)

Where the capital of a bank is invested in Government bonds it cannot be taxed by the States. But the shares of stock may be taxed as such in hands of stockholders. And held that the revenue law of Kentucky which imposes a tax on bank stock, and requires the officers of the bank to pay the tax so levied on the shares of stock, is a tax on the stockholders and not on the capital of the bank, and is valid. (National Bank v. Kentucky, 9 Wall. 353 ; Lionberger v. Rouse, 9 Wall. 468. Id. 19.)

United States securities are not subject to taxation by States. (Society for Savings 7. Coite, 6 Wall. 594 ; Weston ». Charleston, 2 Pet. 449; McCulloch v. Maryland, 4 Wheat. 316; Osborn v. United States Bank, 9 Wheat. 738. Id.)

$ 459. “Nor Shall the Commonwealth." The exemption of State property from Federal taxation is also secured. The Supreme Court of the United States has decided that the general principles of the Constitution forbid the Congress to tax the necessary governmental instrumentalities of the States, such as the salaries of officers and the revenues of municipal corporations, on the ground that such a power would enable the Congress to destroy the States, which nothing short of the amending power, the sovereignty, should be able to do in a federal system of government. (Collector v. Day, 11 Wall. 113.) The United States courts determine, of course, in what these necessary instrumentalities, in any particular case, consist. (Burgess, Political Sc., ii. p. 151.)

States not to coin money. 115. A State shall not coin money.c, nor make anything but gold and silver coin a legal tender*61 in payment of debts. UNITED STATES. -No State shall

coin money ;

make anything but gold and silver coin a tender in payment of debts. - Art. I., sec. X., sub-s. 1. HISTORICAL NOTE. — The clause in the Commonwealth Bill of 1891 was in identical words—with the exception of “or” for “nor.” At the Adelaide session, 1897, it was introduced and passed as it now stands. (Conv. Deb., Adel., p. 1204.) At the Melbourne session, a suggestion by the Legislative Council of Tasmania, to insert after “money” the words “unless the Parliament otherwise provides” was negatived. A suggestion by the Legislative Assembly of New South Wales, to omit the provision as to legal tender, and insert “unless the Parliament otherwise determines,” was also negatived. (Conv. Deb., Melb., pp. 653-4.)

9

$ 460. “ A State shall not Coin Money." Coinage is a prerogative of the Crown (see Note, ş 177, supra). A State is forbidden to coin money ; it cannot create a metal currency ; it cannot give to metal any more than to paper the quality of money. The combined effect of this negation, coupled with the operation of sec. 51--- xii., is that the coinage and legitimation of metal money, and in fact the regulation of the whole of the monetary system of the Commonwealth, is exclusively vested in the Federal Parliament, as against the States. That Parliament alone will be able to create money and regulate its value, as well as create paper money, and regulate its value. Its laws of course will only be operative within the Commonwealth, and may, in accordance with the usual practice, be reserved for Imperial consideration, in order to maintain the uniformity of coinage laws throughout the Empire.

$ 461. “ Nor Make anything but Gold and Silver Coin

a Legal Tender.” The provision of this section, that the States may not make anything but gold and silver coin a legal tender in payment of debts, would appear, at first view, to authorize a State to make gold and silver a legal tender, in the absence of Federal legislation, and consequently to give the States a concurrent power within those limits. It must be noted, however, that gold and silver coin can only be impressed with the quality of money by Federal legislation, and Federal legislation may withdraw that quality at any time, Then the power of the States to make gold and silver a legal tender would cease ; gold and silver metal can not be made legal tender until it is converted into coin ; it can only be converted into coin by the Federal authority. (Burgess, Political Sc. ii. 142.)

Commonwealth not to legislate in respect to religion. 116. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance462, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

UNITED STATES - No religious test shall ever be required as a qualification to any office or public trust under the United States ---Art. VI. sec. 3.

Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof.- Amendment I. HISTORICAL NOTE.—Clause 16, Chap. V. of the Commonwealth Bill of 1891 was :“ A State shall not make any law prohibiting the free exercise of any religion.' This was adopted verbatim at the Adelaide session, 1897. At the Melbourne session, Mr. Higgins moved an amendment to make the clause read : “A State shall not, nor shall the Commonwealth, niake any law prohibiting the free exercise of any religion, or imposing any religious test or observance.” Mr. Higgins argued that these words might be necessary to prevent an implication, arising out of the recognition of Almighty God in the preamble, that the Commonwealth had power to legislate upon religious matters. The objections raised to the amendment were that the “free exercise of religion ” was too wide an expression, and might sanction objectionable rites ; and that the provision was unnecessary, as tho Federal Parliament had no power to legislate as to religion. Mr. Higgins' amendment was negatived, as was also a suggestion by the House of Assembly in Tasmania, to and the words “nor appropriate any portion of its revenues or property for the propagation or support of any religion.” The clause itself was then negatived. (Conv. Deb., Melb., pp. 654-64.) At a later stage Mr. Higgins proposed a new clause, in substantially the form of the above section. Mr. Symon moved, as an amendment, to substitute the following provision :-.

“Nothing in this Constitution shall be held to empower the Commonwealth to require any religious test as a qualitication for any public office or public trust under the Conimonwealth.”

After debate, Mr. Symon's amendment was negatived by 22 votes to 19, and Mr. Higgins' clause was carried by 25 votes to 16. (Conv. Deb., Melb., pp. 1769-79.) Drafting amendments were made after the fourth report.

$ 462. “Any Religion or ... any Religious Observance.”

The Commonwealth is forbidden to make any law for establishing any religion or for imposing any religious observance. A preliminary observation which should be made is that the term Commonwealth as used in this section does not mean the Federal community, but the Government of the Commonwealth acting through any of its agencies or instrumentalities. The people and States constituting the Federal community could at any time interpose and amend the Constitution in order to authorize the enactment, by the Federal Parliament, of the laws now prohibited. The prohibition itself and the circumstances under which it has found a place in the Constitution next demand attention.

By the establishment of religion is meant the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others. It is not intended to prohibit the Federal Government froni recognizing religion or religious worship. The Christian religion is, in most English speaking countries, recognized as a part of the common law. “There is abundant authority for saying that Christianity is a part and parcel of the law of the land.” (Per Kelly, C'. B., in Cowan 1. Milbourn (1867), L.R. 2 Ex. 234.) In America the courts of the Union and of the States find it necessary, in administering the common law, to take notice that the prevailing religion is Christian. (Vidal v. Girard's Executors, 2 How.

« PrejšnjaNaprej »