The Constitution of the United States of America: Analysis and Interpretation Part 127

A State may not, in the exercise of its taxing power, substantially discriminate between residents and nonresidents. A leading case is Ward _v._ Maryland,[182] in which the Court set aside a State law which imposed special taxes upon nonresidents for the privilege of selling within the State goods which were produced outside it. Likewise, a Tennessee statute which made the amount of the annual license tax exacted for the privilege of doing railway construction work dependent upon whether the person taxed had his chief office within or without the State, was found to be incompatible with the comity clause.[183] In Travis _v._ Yale and Towne Mfg. Co.,[184] the Court, while sustaining the right of a State to tax income accruing within its borders to nonresidents,[185] held the particular tax void because it denied to nonresidents exemptions which were allowed to residents. The "terms 'resident' and 'citizen' are not synonymous," wrote Justice Pitney, "* * * but a general taxing scheme * * * if it discriminates against all nonresidents, has the necessary effect of including in the discrimination those who are citizens of other States; * * *"[186]

Where there was no discrimination between citizens and noncitizens, a State statute taxing the business of hiring persons within the State for labor outside the State, was sustained.[187] This section of the Const.i.tution does not prevent a territorial government, exercising powers delegated by Congress, from imposing a discriminatory license tax on nonresident fishermen operating within its waters.[188]

However, what at first glance may appear to be a discrimination may turn out not to be when the entire system of taxation prevailing in the enacting State is considered. On the basis of over-all fairness, the Court sustained a Connecticut statute which required nonresident stockholders to pay a State tax measured by the full market value of their stock, while resident stockholders were subject to local taxation on the market value of that stock reduced by the value of the real estate owned by the corporation.[189] Occasional or accidental inequality to a nonresident taxpayer are not sufficient to defeat a scheme of taxation whose operation is generally equitable.[190] In an early case the Court brushed aside as frivolous the contention that a State violated this clause by subjecting one of its own citizens to a property tax on a debt due from a nonresident secured by real estate situated where the debtor resided.[191]

Clause 2. A person charged in any State With Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

Fugitives From Justice

DUTY TO SURRENDER

Although this provision is not in its nature self-executing, and there is no express grant to Congress of power to carry it into effect, that body pa.s.sed a law shortly after the Const.i.tution was adopted, imposing upon the Governor of each State the duty to deliver up fugitives from justice found in such State.[192] The Supreme Court has accepted this contemporaneous construction as establishing the validity of this legislation.[193] The duty to surrender is not absolute and unqualified; if the laws of the State to which the fugitive has fled have been put in force against him, and he is imprisoned there, the demands of those laws may be satisfied before the duty of obedience to the requisition arises.[194] In Kentucky _v._ Dennison[195] the Court held, moreover, that this statute was merely declaratory of a moral duty; that the Federal Government "has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; * * *"[196] and consequently that a federal court could not issue a mandamus to compel the governor of one State to surrender a fugitive to another. In 1934 Congress plugged the loophole exposed by this decision by making it unlawful for any person to flee from one State to another for the purpose of avoiding prosecution in certain cases.[197]

FUGITIVE FROM JUSTICE

To be a fugitive from justice within the meaning of this clause, it is not necessary that the party charged should have left the State after an indictment found, or for the purpose of avoiding a prosecution antic.i.p.ated or begun. It is sufficient that the accused, having committed a crime within one State and having left the jurisdiction before being subjected to criminal process, is found within another State.[198] The motive which induced the departure is immaterial.[199]

Even if he were brought involuntarily into the State where found by requisition from another State, he may be surrendered to a third State upon an extradition warrant.[200] A person indicted a second time for the same offense is nonetheless a fugitive from justice by reason of the fact that after dismissal of the first indictment, on which he was originally indicted, he left the State with the knowledge of, or without objection by, State authorities.[201] But a defendant cannot be extradited if he was only constructively present in the demanding State at the time of the commission of the crime charged.[202] For the purpose of determining who is a fugitive from justice, the words "treason, felony or other crime" embrace every act forbidden and made punishable by a law of a State,[203] including misdemeanors.[204]

PROCEDURE FOR REMOVAL

Only after a person has been charged with crime in the regular course of judicial proceedings is the governor of a State ent.i.tled to make demand for his return from another State.[205] The person demanded has no const.i.tutional right to be heard before the governor of the State in which he is found on the question whether he has been substantially charged with crime and is a fugitive from justice.[206] The const.i.tutionally required surrender is not to be interfered with by _habeas corpus_ upon speculations as to what ought to be the result of a trial.[207] Nor is it proper thereby to inquire into the motives controlling the actions of the governors of the demanding and surrendering States.[208] Matters of defense, such as the running of the statute of limitations, cannot be heard on _habeas corpus_, but must be determined at the trial.[209] A defendant will, however, be discharged on _habeas corpus_ if he shows by clear and satisfactory evidence that he was outside the demanding State at the time of the crime.[210] If, however, the evidence is conflicting, _habeas corpus_ is not a proper proceeding to try the question of alibi.[211]

TRIAL OF FUGITIVE AFTER REMOVAL

There is nothing in the Const.i.tution or laws of the United States which exempts an offender, brought before the courts of a State for an offense against its laws, from trial and punishment, even though he was brought from another State by unlawful violence,[212] or by abuse of legal process,[213] and a fugitive lawfully extradited from another State may be tried for an offense other than that for which he was surrendered.[214] The rule is different, however, with respect to fugitives surrendered by a foreign government pursuant to treaty. In that case the offender may be tried only "for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings."[215]

Clause 3. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

This clause contemplated the existence of a positive unqualified right on the part of the owner of a slave which no State law could in any way regulate, control or restrain. Consequently the owner of a slave had the same right to seize and repossess him in another State, as the local laws of his own State conferred upon him, and a State law which penalized such seizure was held unconst.i.tutional.[216] Congress had the power and the duty, which it exercised by the act of February 12, 1793,[217] to carry into effect the rights given by this Section,[218]

and the States had no concurrent power to legislate on the subject.[219]

However, a State statute providing a penalty for harboring a fugitive slave was held not to conflict with this clause since it did not affect the right or remedy either of the master or the slave; by it the State simply prescribed a rule of conduct for its own citizens in the exercise of its police power.[220]

Section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Doctrine of the Equality of the States

"Equality of const.i.tutional right and power is the condition of all the States of the Union, old and new."[221] This doctrine, now a truism of Const.i.tutional Law, did not find favor in the Const.i.tutional Convention.

That body struck out from this section, as reported by the Committee on Detail, two sections to the effect that "... new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States concerning the public debt which shall be subsisting."[222] Opposing this action, Madison insisted that "the Western States neither would nor ought to submit to a union which degraded them from an equal rank with the other States."[223]

Nonetheless, after further expressions of opinion _pro_ and _con_, the Convention voted nine States to two to delete the requirement of equality.[224] Prior to this time, however, Georgia and Virginia had ceded to the United States large territories held by them, upon condition that new States should be formed therefrom, and admitted to the Union on an equal footing with the original States.[225] With the admission of Louisiana in 1812, the principle of equality was extended to States created out of territory purchased from a foreign power.[226]

By the Joint Resolution of December 29, 1845, Texas "was admitted into the Union on an equal footing with the original States in all respects whatever."[227] Again and again, in adjudicating the rights and duties of States admitted after 1789, the Supreme Court has referred to the condition of equality as if it were an inherent attribute of the Federal Union.[228] Finally, in 1911, it invalidated a restriction on the change of location of the State capital, which Congress had imposed as a condition for the admission of Oklahoma, on the ground that Congress may not embrace in an enabling act conditions relating wholly to matters under State control.[229] In an opinion, from which Justices Holmes and McKenna dissented, Justice Lurton argued: "The power is to admit 'new States into _this_ Union.' 'This Union' was and is a union of States, equal in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Const.i.tution itself. To maintain otherwise would be to say that the Union, through the power of Congress to admit new States, might come to be a union of States unequal in power, as including States whose powers were restricted only by the Const.i.tution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission."[230]

EARLIER SCOPE OF THE DOCTRINE

Until recently, however, the requirement of equality has applied primarily to political standing and sovereignty rather than to economic or property rights.[231] Broadly speaking, every new State is ent.i.tled to exercise all the powers of government which belong to the original States of the Union.[232] It acquires general jurisdiction, civil and criminal, for the preservation of public order, and the protection of persons and property throughout its limits except where it has ceded exclusive jurisdiction to the United States.[233] The legislative authority of a newly admitted State extends over federally owned land within the State, to the same extent as over similar property held by private owners, save that the State can enact no law which would conflict with the const.i.tutional powers of the United States.

Consequently it has jurisdiction to tax private activities carried on within the public domain, if the tax does not const.i.tute an unconst.i.tutional burden on the Federal Government.[234] Statutes applicable to territories, e.g., the Northwest Territory Ordinance of 1787, cease to have any operative force when the territory, or any part thereof, is admitted to the Union, except as adopted by State law.[235]

When the enabling act contains no exclusion of jurisdiction as to crimes committed on Indian reservations by persons other than Indians, State courts are vested with jurisdiction.[236] But the const.i.tutional authority of Congress to regulate commerce with Indian tribes is not inconsistent with the equality of new States,[237] and conditions inserted in the New Mexico Enabling Act forbidding the introduction of liquor into Indian territory were therefore valid.[238]

CITIZENSHIP OF INHABITANTS

Admission of a State on an equal footing with the original States involves the adoption as citizens of the United States of those whom Congress makes members of the political community, and who are recognized as such in the formation of the new State.[239]

JUDICIAL PROCEEDINGS

Whenever a territory is admitted into the Union, the cases pending in the territorial court which are of exclusive federal cognizance are transferred to the federal court having jurisdiction over the area; cases not cognizable in the federal courts are transferred to the tribunals of the new State, and those over which federal and State courts have concurrent jurisdiction may be transferred either to the State or federal courts by the party possessing that option under existing law.[240] Where Congress neglected to make provision for disposition of certain pending cases in an Enabling Act for the admission of a State to the Union, a subsequent act supplying the omission was held valid.[241] After a case, begun in a United States court of a territory, is transferred to a State court under the operation of the enabling act and the State const.i.tution, the appellate procedure is governed by the State statutes and procedure.[242] The new State cannot, without the express or implied a.s.sent of Congress, enact that the records of the former territorial court of appeals should become records of its own courts, or provide by law for proceedings based thereon.[243]

PROPERTY RIGHTS: UNITED STATES _v._ TEXAS

Holding that a "mere agreement in reference to property" involved "no question of equality of status," the Supreme Court upheld, in Stearns _v._ Minnesota,[244] a promise exacted from Minnesota upon its admission to the Union which was interpreted to limit its right to tax lands held by the United States at the time of admission and subsequently granted to a railroad. The "equal footing" doctrine has had an important effect, however, on the property rights of new States to soil under navigable waters. In Pollard _v._ Hagan,[245] the Court held that the original States had reserved to themselves the ownership of the sh.o.r.es of navigable waters and the soils under them, and that under the principle of equality the t.i.tle to the soils of navigable waters pa.s.ses to a new State upon admission. After refusing to extend the inland-water rule of this case to the three mile marginal belt under the ocean along the coast,[246] the Court applied the principle of the Pollard Case in reverse in United States _v._ Texas.[247] Since the original States had been found not to own the soil under the three mile belt, Texas, which concededly did own this soil before its annexation to the United States, was held to have surrendered its dominion and sovereignty over it, upon entering the Union on terms of equality with the existing States. To this extent, the earlier rule that unless otherwise declared by Congress the t.i.tle to every species of property owned by a territory pa.s.ses to the State upon admission[248] has been qualified.

RIGHTS CONVEYED TO PRIVATE PERSONS BEFORE ADMISSION OF A STATE

While the territorial status continues, the United States has power to convey property rights, such as rights in soil below high-water mark along navigable waters,[249] or the right to fish in designated waters,[250] which will be binding on the State. But a treaty with an Indian tribe which gave hunting rights on unoccupied lands of the United States, which rights should cease when the United States parted with its t.i.tle to any of the land, was held to be repealed by the admission to the Union of the territory in which the hunting lands were situated.[251]

Clause 2. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Const.i.tution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Property of the United States

METHODS OF DISPOSING THEREOF

The Const.i.tution is silent as to the methods of disposing of property of the United States. In United States _v._ Gratiot,[252] in which the validity of a lease of lead mines on government lands was put in issue, the contention was advanced that "disposal is not letting or leasing,"

and that Congress has no power "to give or authorize leases." The Court sustained the leases, saying "the disposal must be left to the discretion of Congress."[253] Nearly a century later this power to dispose of public property was relied upon to uphold the generation and sale of electricity by the Tennessee Valley Authority. The reasoning of the Court ran thus: the potential electrical energy made available by the construction of a dam in the exercise of its const.i.tutional powers is property which the United States is ent.i.tled to reduce to possession; to that end it may install the equipment necessary to generate such energy. In order to widen the market and make a more advantageous disposition of the product, it may construct transmission lines, and may enter into a contract with a private company for the interchange of electric energy.[254]

PUBLIC LANDS

No appropriation of public lands may be made for any purpose except by authority of Congress.[255] However, the long-continued practice of withdrawing land from the public domain by Executive Orders for the purpose of creating Indian reservations has raised an implied delegation of authority from Congress to take such action.[256] The comprehensive authority of Congress over public lands includes the power to prescribe the times, conditions and mode of transfer thereof, and to designate the persons to whom the transfer shall be made;[257] to declare the dignity and effect of t.i.tles emanating from the United States;[258] to determine the validity of grants which antedate the government's acquisition of the property;[259] to exempt lands acquired under the homestead laws from previously contracted debts;[260] to withdraw land from settlement and to prohibit grazing thereon;[261] to prevent unlawful occupation of public property and to declare what are nuisances, as affecting such property, and provide for their abatement;[262] and to prohibit the introduction of liquor on lands purchased and used for an Indian colony.[263] Congress may limit the disposition of the public domain to a manner consistent with its views of public policy. A restriction inserted in a grant of public lands to a munic.i.p.ality which prohibited the grantee from selling or leasing to a private corporation the right to sell or sublet water or electric energy supplied by the facilities constructed on such land was held valid.[264]

THE POWER OF THE STATE

No State can tax public lands of the United States within its borders;[265] nor can State legislation interfere with the power of Congress under this clause or embarra.s.s its exercise.[266] The question whether t.i.tle to land which has once been the property of the United States has pa.s.sed from it must be resolved by the laws of the United States; after t.i.tle has pa.s.sed, "that property, like all other property in the State, is subject to State legislation; so far as that legislation is consistent with the admission that the t.i.tle pa.s.sed and vested according to the laws of the United States."[267] In construing a conveyance by the United States of land within a State, the settled and reasonable rule of construction of the State affords a guide in determining what impliedly pa.s.ses to the grantee as an incident to land expressly granted.[268] But a State statute enacted subsequently to a federal grant cannot be given effect to vest in the State rights which either remained in the United States or pa.s.sed to its grantee.[269]