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Entered according to Act of Congress in the year 1902, by
FREDERICK N. JUDSON,
The office of a preface to a law treatise, at this time when our profession is overwhelmed with books, is to give, if possible, a reason, or at least an excuse, for the publication.
The study of the tax system of any State impresses one with the clear distinction between the taxing power of the State under our complex government, and the construction of the statutes enacted by the State in the exercise of that power. Our States are sovereign in taxation, subject to the restrictions of the Federal Constitution and to the limitations necessarily growing out of our dual form of government. Under the Fourteenth Amendment, the power of the Federal government secures due process of law and the equal protection of the laws in the exercise of this sovereign State authority, so that there is a “ Federal question," whereon the Federal jurisdiction may be invoked, in every tax case in which these fundamental rights are claimed to be denied.
Questions of taxation are now engaging the attention of the legislatures and of the courts, as well as of the economists, to a greater extent than ever before. New experiments in taxation are being tried in the attempt to reach the infinite forms of property and business under the complex conditions of modern society. It was said by the Supreme Court of the United States in a recent opinion that it is only of late years, when the burdens of taxation are increasing by reason of the great expenses of government, that the objects and modes of taxation have become a matter of special scrutiny.1 In this case the court held unconstitutional a Federal tax which had been exercised without question at different periods for over a hundred years since the foundation of the government, and said that the delay in presenting such questions was no excuse for not giving them full consideration and determining them in accordance with the true meaning of the Constitution.
So great is the diversity in the details of State taxing systems and so many are the cases involved in their construction and application, that the inclusion of this great volume of accumulated case law on taxation in an intelligent form with the different State constitutions and statutes expounded and applied would now require a publication of cyclopedic proportions. Thus in the last annual digest there are nearly one thousand different tax cases digested, many of these involving several distinct points of decision, which are separately digested.
The taxing power of the States under the limitations of the Constitution of the United States and the taxing power of Congress under the grants of the Constitution have been expounded and developed by the Supreme Court of the United States, the supreme arbiter of the Constitution, for more than a century, and it is believed that the time has come when the rules formulated by this tribunal defining the limits of the taxing power, both State and Federal, may be definitely and connectedly stated. These rules are “ judge made” law evolved by the court for the complicated conditions of modern business from this gradually developed conception of the relations of the States to the Federal government. Liberal use therefore has been made of quotations from the opinions of the court in formulating and announcing these rules, including not only the prevailing, but sometimes the dissenting, opinions, as the latter have not been without their use in the development of the law on this subject. Many of these opinions, notably those of Chief Justice Marshall and the late Justices Bradley, Field and Miller, and those of the present members of the court, are valuable contributions, not only to the constitutional law of taxation, but to the practical solution of the vexed and intricate problems of taxation by our dual sovereignties under our complex modern conditions.
1 Fairbank v. United States, 181 U. S. 1. c. 312.
It is the aim of this work to show the limitations of the taxing power of the State and of the Federal government so far as these limitations have been declared and expounded by the Supreme Court of the United States. Decisions of the State courts and inferior Federal courts have been cited as applying or illustrating the limitations thus declared. These limitations fix what the State can tax. What it has taxed must be learned from its own statutes and the decisions of its own courts. What it ought to tax is a question for economists and reformers.
To save unnecessary repetition, the Supreme Court of the United States is mentioned as the Supreme Court only, and is thus distinguished from the Supreme Courts of the States, the titles of which include the names of the States. For convenience of reference, the appendix contains the Constitution of the United States and also the most important and illustrative provisions of the respective State constitutions relating to taxation.
I must acknowledge the very efficient services of Mr. McVeigh Harrison of the St. Louis Bar, in general revision, reading proof and preparing index; and also of Mr. William B. Hale, now of the New York Bar, in the collection of State cases, and of Mr. J. Clarence Taussig of the St. Louis Bar in the compilation of State constitutions. I have also been assisted by Mr. Lee M. Edgar in preparing the table of cases; and must acknowledge the consideration of my law partner, Mr. John F. Green, during the necessary interruption of an active practice by the preparation of this book for the press.