The Constitution of the United States of America: Analysis and Interpretation Part 137

ROYALTIES; A JUDICIAL ANTICLIMAX

In 1928 the Court went so far as to hold that a State could not tax as income royalties for the use of a patent issued by the United States.[97] This proposition was soon overruled in Fox Film Corp. _v._ Doyal,[98] where a privilege tax based on gross income and applicable to royalties from copyrights was upheld. Likewise a State may lay a franchise tax on corporations, measured by the net income from all sources, and applicable to income from copyright royalties.[99]

IMMUNITY OF LESSEES OF INDIAN LANDS

Another line of anomalous decisions conferring tax immunity upon lessees of restricted Indian lands was overruled in 1949. The first of these cases, Choctaw O. & G.R. Co. _v._ Harrison,[100] held that a gross production tax on oil, gas and other minerals was an occupational tax, and, as applied to a lessee of restricted Indian lands, was an unconst.i.tutional burden on such lessee, who was deemed to be an instrumentality of the United States. Next the Court held the lease itself a federal instrumentality immune from taxation.[101] A modified gross production tax imposed in lieu of all _ad valorem_ taxes was invalidated in two _per curiam_ decisions.[102] In Gillespie _v._ Oklahoma[103] a tax upon the net income of the lessee derived from sales of his share of oil produced from restricted lands also was condemned.

Finally a petroleum excise tax upon every barrel of oil produced in the State was held inapplicable to oil produced on restricted Indian lands.[104] In harmony with the trend to restricting immunity implied from the Const.i.tution to activities of the Government itself, the Court overruled all these decisions in Oklahoma Tax Comm'n _v._ Texas Co. and held that a lessee of mineral rights in restricted Indian lands was subject to nondiscriminatory gross production and excise taxes, so long as Congress did not affirmatively grant them immunity.[105]

SUMMATION AND EVALUATION

Although McCulloch _v._ Maryland and Gibbons _v._ Ogden were expressions of a single thesis--the supremacy of the National Government--their development after Marshall's death has been sharply divergent. During the period when Gibbons _v._ Ogden was eclipsed by the theory of dual federalism, the doctrine of McCulloch _v._ Maryland was not merely followed but greatly extended as a restraint on State interference with federal instrumentalities. Conversely, the Court's recent return to Marshall's conception of the powers of Congress has coincided with a retreat from the more extreme positions taken in reliance upon McCulloch _v._ Maryland. Today the application of the supremacy clause is becoming, to an ever increasing degree, a matter of statutory interpretation--a determination of whether State regulations can be reconciled with the language and policy of federal enactments. In the field of taxation, the Court has all but wiped out the private immunities previously implied from the Const.i.tution without explicit legislative command. Broadly speaking, the immunity which remains is limited to activities of the Government itself, and to that which is explicitly created by statute, e.g., that granted to federal securities and to fiscal inst.i.tutions chartered by Congress. But the term, activities, will be broadly construed.

Clause 3. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Const.i.tution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Oath of Office

POWER OF CONGRESS IN RESPECT TO OATHS

Congress may require no other oath of fidelity to the Const.i.tution, but it may superadd to this oath such other oath of office as its wisdom may require.[106] It may not, however, prescribe a test oath as a qualification for holding office, such an act being in effect an _ex post facto_ law;[107] and the same rule holds in the case of the States.[108]

NATIONAL DUTIES OF STATE OFFICERS

Commenting in The Federalist No. 27 on the requirement that State officers, as well as members of the State legislatures, shall be bound by oath or affirmation to support this Const.i.tution, Hamilton wrote: "Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government _as far as its just and const.i.tutional authority extends_; and it will be rendered auxiliary to the enforcement of its laws." The younger Pinckney had expressed the same idea on the floor of the Philadelphia Convention: "They [the States] are the instruments upon which the Union must frequently depend for the support and execution of their powers, * * *"[109] Indeed, the Const.i.tution itself lays many duties, both positive and negative, upon the different organs of State government,[110] and Congress may frequently add others, provided it does not require the State authorities to act outside their normal jurisdiction. Early Congressional legislation contains many ill.u.s.trations of such action by Congress.

The Judiciary Act of 1789[111] left the State courts in sole possession of a large part of the jurisdiction over controversies between citizens of different States and in concurrent possession of the rest. By other sections of the same act State courts were authorized to entertain proceedings by the United States itself to enforce penalties and forfeitures under the revenue laws, while any justice of the peace or other magistrate of any of the States was authorized to cause any offender against the United States to be arrested and imprisoned or bailed under the usual mode of process. Even as late as 1839, Congress authorized all pecuniary penalties and forfeitures under the laws of the United States to be sued for before any court of competent jurisdiction in the State where the cause of action arose or where the offender might be found.[112] Pursuant also of the same idea of treating State governmental organs as available to the National Government for administrative purposes, the act of 1793 entrusted the rendition of fugitive slaves in part to national officials and in part of State officials and the rendition of fugitives from justice from one State to another exclusively to the State executives.[113] Certain later acts empowered State courts to entertain criminal prosecutions for forging paper of the Bank of the United States and for counterfeiting coin of the United States,[114] while still others conferred on State judges authority to admit aliens to national citizenship and provided penalties in case such judges should utter false certificates of naturalization--provisions which are still on the statute books.[115]

With the rise of the doctrine of States Rights and of the equal sovereignty of the States with the National Government, the availability of the former as instruments of the latter in the execution of its power, came to be questioned.[116] In Prigg _v._ Pennsylvania,[117]

decided in 1842, the const.i.tutionality of the provision of the act of 1793 making it the duty of State magistrates to act in the return of fugitive slaves was challenged; and in Kentucky _v._ Dennison,[118]

decided on the eve of the Civil War, similar objection was leveled against the provision of the same act which made it "the duty" of the Chief Executive of a State to render up a fugitive from justice upon the demand of the Chief Executive of the State from which the fugitive had fled. The Court sustained both provisions, but upon the theory that the cooperation of the State authorities was purely voluntary. In the Prigg Case the Court, speaking by Justice Story, said: "* * * state magistrates may, if they choose, exercise the authority, [conferred by the act] unless prohibited by state legislation."[119] In the Dennison Case, "the duty" of State executives in the rendition of fugitives from justice was construed to be declaratory of a "moral duty." Said Chief Justice Taney for the Court: "The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the Executive of the State; nor is there any clause or provision in the Const.i.tution which arms the Government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the General Government, even in the administration of its internal concerns and reserved rights. And we think it clear, that the Federal Government, under the Const.i.tution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possessed this power, it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the State, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State. It is true," the Chief Justice conceded, "that in the early days of the Government, Congress relied with confidence upon the co-operation and support of the States, when exercising the legitimate powers of the General Government, and were accustomed to receive it, [but this, he explained, was] upon principles of comity, and from a sense of mutual and common interest, where no such duty was imposed by the Const.i.tution."[120]

Eighteen years later, in Ex parte Siebold[121] the Court sustained the right of Congress, under article I, section 4, paragraph 1 of the Const.i.tution, to impose duties upon State election officials in connection with a Congressional election and to prescribe additional penalties for the violation by such officials of their duties under State law. While the doctrine of the holding is expressly confined to cases in which the National Government and the States enjoy "a concurrent power over the same subject matter," no attempt is made to catalogue such cases. Moreover, the outlook of Justice Bradley's opinion for the Court is decidedly nationalistic rather than dualistic, as is shown by the answer made to the contention of counsel "that the nature of sovereignty is such as to preclude the joint cooperation of two sovereigns, even in a matter in which they are mutually concerned." To this Justice Bradley replied: "As a general rule, it is no doubt expedient and wise that the operations of the State and national governments should, as far as practicable, be conducted separately, in order to avoid undue jealousies and jars and conflicts of jurisdiction and power. But there is no reason for laying this down as a rule of universal application. It should never be made to override the plain and manifest dictates of the Const.i.tution itself. We cannot yield to such a transcendental view of state sovereignty. The Const.i.tution and laws of the United States are the supreme law of the land, and to these every citizen of every State owes obedience, whether in his individual or official capacity."[122] Three years earlier the Court, speaking also by Justice Bradley, sustained a provision of the Bankruptcy Act of 1867 giving a.s.signees a right to sue in State courts to recover the a.s.sets of a bankrupt. Said the Court: The statutes of the United States are as much the law of the land in any State as are those of the State; and although exclusive jurisdiction for their enforcement may be given to the federal courts, yet where it is not given, either expressly or by necessary implication, the State courts having competent jurisdiction in other respects, may be resorted to.[123]

The Selective Service Act of 1917[124] was enforced to a great extent through State "employees who functioned under State supervision";[125]

and State officials were frequently employed by the National Government in the enforcement of National Prohibition.[126] Nowadays, there is constant cooperation, both in peacetime and in wartime, in many fields between National and State Officers and official bodies.[127] This relationship obviously calls for the active fidelity of both categories of officialdom to the Const.i.tution.

Notes

[1] On the supremacy of treaties over conflicting State law, _see_ pp.

414-418. The supremacy due to treaties has, within recent years, been extended to certain executive agreements. _See_ Justice Douglas in United States _v._ Pink, 315 U.S. 203 (1942). As to the supremacy of Congressional legislation implementing the national judicial power, _see_ Tennessee _v._ Davis, 100 U.S. 257, 266-267 (1880); and Ex parte Siebold, 100 U.S. 404 (1880).

[2] 4. Wheat. 316 (1819). Marshall had antic.i.p.ated his argument in this case in 1805, in United States _v._ Fisher, 2 Cr. 358 (1805), in which he upheld the act of 1797 a.s.serting for the United States a priority of its claims over those of the States. _See_ Chief Justice Taft's opinion in Spokane County _v._ United States, 279 U.S. 80, 87 (1929), where United States _v._ Fisher is followed; _also_ 1 Warren, Supreme Court in United States History, 372, 538 ff.

[3] 9 Wheat. 1 (1824).

[4] 4 Wheat. 316, 436 (1819).

[5] 9 Wheat. 1, 210-211 (1824).

[6] 11 Pet. 102 (1837).

[7] Ibid. 139.

[8] Ibid. 161.

[9] 5 How. 504 (1847).

[10] Ibid. 573-574.

[11] National Labor Relations Board _v._ Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937).

[12] Steward Machine Co. _v._ Davis, 301 U.S. 548 (1937); Helvering _v._ Davis, 301 U.S. 619 (1937).

[13] United States _v._ Darby, 312 U.S. 100 (1941); _see_ especially ibid. 113-124.

[14] Sola Electric Co. _v._ Jefferson Electric Co., 317 U.S. 173, 170 (1942); Hill _v._ Florida, 325 U.S. 538 (1945); _see also_ Testa _v._ Katt, 330 U.S. 380, 391 (1947); Francis _v._ Southern Pacific Co. 333 U.S. 445 (1918); and Bus Employers _v._ Wisconsin Board, 340 U.S. 383 (1951).

[15] Southern Pacific Co. _v._ Arizona, 825 U.S. 761 (1945); Rice _v._ Santa Fe Elevator Co., 331 U.S. 218, 230 (1947); Auto Workers _v._ Wis.

Board, 336 U.S. 245, 253 (1949); United States _v._ Burnison, 339 U.S.

87, 91-92 (1950).

[16] Ohio _v._ Thomas, 173 U.S. 276, 283 (1899).

[17] Johnson _v._ Maryland, 254 U.S. 51 (1920).

[18] Arizona _v._ California, 283 U.S. 423, 451 (1931).

[19] 9 Wall. 353 (1870).

[20] Ibid. 362.

[21] 161 U.S. 275 (1896).

[22] Ibid. 283.

[23] Reagan _v._ Mercantile Trust Co., 154 U.S. 413 (1894).

[24] Johnson _v._ Maryland, 254 U.S. 51, 56 (1920).

[25] Penn Dairies _v._ Milk Control Comm'n., 318 U.S. 261 (1943).

[26] Pacific Coast Dairy _v._ Dept. of Agriculture, 318 U.S. 285 (1943).