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The government claimed that McCray had purchased for resale oleomargarine colored to look like butter, upon which there were stamps at the rate of one-fourth of a cent per pound only, whereas there should have been stamps at the rate of ten cents per pound. McCray made answer, admitting the purchase for resale of the said oleomargarine, but asserted that while it was true that the product was of a yellow color, yet this result was not caused by artificial coloring, but was solely due to the fact that the butter used in making the oleomargarine had a deep yellow color imparted to it by a substance known as Wells-Richardson improved butter color, a product the use of which in butter was not forbidden by the government. He claimed that the use of such butter did not amount to an artificial coloration of the oleomargarine, itself, within the meaning of the above statute, even though a yellow color was produced in the oleomargarine. But the principal contention of McCray was that the statutes in question were unconstitutional because they deprived him of his property without due process of law, inasmuch as the tax at the rate of ten cents per pound arbitrarily discriminated against oleomargarine in favor of butter to the extent of destroying the oleomargarine industry for the benefit of the butter industry.

The district court gave judgment in favor of the United States from which decision an appeal was taken directly to the Supreme Court because of the importance of the questions involved, arising under the Constitution.

MR. JUSTICE WHITE delivered the opinion of the court:


Leaving out of view the proviso to the 8th Section of the Act of 1886 as amended and re-enacted by the 3d Section of the Act of 1902, it is beyond question that a tax of ten cents a pound is imposed upon oleomargarine. As the product was admitted by the answer to be oleomargarine, it follows that it was subject to the tax of 10 cents a pound, unless by the proviso, the oleomargarine was of such a character as to entitle it to the benefits of a lower rate of taxation. Now, the proviso reads: "Provided, when oleomargarine is free from artificial coloration that causes it to look like butter of any shade of yellow, said tax shall be one-fourth of one cent per pound.” As it was admitted that the oleomargarine was of a shade of yellow causing it to look like butter, and as it was also admitted that this shade of yellow had been imparted by an artificial coloring matter used to color the butter which formed one of the ingredients from which the oleomargarine was manufactured, it results, if the text of the statute be applied that the oleomargarine was not within the proviso because it was not free from artificial coloring matter causing it to look like butter. This necessarily follows, since the right to enjoy the lower rate of tax is made by the proviso to depend upon whether, as a matter of fact, the oleomargarine was free from artificial coloring matter, and not upon the mere method adopted for imparting the artificial





color. As the oleomargarine in question was in fact not free from artificial coloration we think that a construction which would take it out of the general rule imposing the ten cent tax upon all oleomargarine, and bring it within the exception embracing only oleomargarine free from artificial coloration, would be not an interpretation of the statute, but a disregard of its unambiguous provisions.

The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted. As we have previously said, from the beginning no case can be found announcing such a doctrine, and on the contrary, the doctrine of a number of cases is inconsistent with its existence. As quite recently pointed out by this court in Knowlton v. Moore, 178 U. S. 41, the often quoted statement of Chief Justice Marshall in M'Culloch v. Maryland, 4 Wheat. 316, that the power of tax is the power to destroy, affords no support whatever to the proposition that where there is a lawful power to impose a tax, its imposition may be treated as without the power because of the destructive effect of the exertion of the authority.

Yet again, in Veazie Bank v. Fenno, 8 Wall. 533, where a tax levied by Congress on the circulating notes of state banks was assailed on the ground that the tax was intended to destroy the circulation of such notes, and was, besides, the exercise of a power to tax a subject not conferred upon Congress, it was said, as to the first contention (p. 548): "It is insisted, however, that the tax in the case before us is excessive, and so excessive as to indicate a purpose on the part of Congress to destroy the franchise of the bank, and is, therefore, beyond the constitutional power of Congress. The first answer to this is that the judicial cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers. The power to tax may be exercised oppressively upon persons, but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected. So, if a particular tax bears heavily upon a corporation or a class of corporations, it cannot, for that reason only be pronounced contrary to the Constitution.”

In Treat v. White, 181 U. S. 264, referring to a stamp duty levied by Congress, it was observed : “The power of Congress in this direction is unlimited. It does not come within the province of this court to consider why agreements to sell shall be subject to the stamp duty, and agreements to buy, not. It is enough that Congress, in this legislation, has imposed a stamp duty upon one and not upon the other."

It being thus demonstrated that the motive or purpose of Congress in adopting the acts in question may not be inquired into, we are brought to consider the contentions relied upon to show that the acts assailed were beyond the power of Congress, putting entirely out of view all considerations based upon purpose or mo



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Since, as pointed out in all the decisions referred to, the taxing power conferred by the Constitution knows no limits except those expressly stated in that instrument, it must follow, if a tax be within the lawful power, the exertion of that power may not be judicially restrained because of the results to arise from its exercise.

The proposition that where a tax is imposed which is within the grant of powers, and which does not conflict with any express constitutional limitation, the courts may hold the tax to be void because it is deemed that the tax is too high, is absolutely disposed of by the opinions in the cases hitherto cited, and which expressly hold, to repeat again the language of one of the cases (Spencer v. Merchant) that “The judicial department cannot prescribe to the legislative department limitations upon the exercise of its acknowledged powers. The power to tax may be exercised oppressively upon persons; but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected.”

Whilst undoubtedly both the 5th and 10th Amendments qualify in so far as they are applicable, all the provisions of the Constitution, nothing in those amendments operates to take away the grant of power to tax conferred by the Constitution upon Congress. The contention on this subject rests upon the theory that the purpose and motive of Congress in exercising its undoubted powers may be inquired into by the courts, and the proposition is therefore disposed of by what has been said on that subject.

The right of Congress to tax within its delegated power being unrestrained, except as limited by the Constitution, it was within the authority conferred on Congress to select the objects upon which an excise should be laid. It therefore follows, that in exerting its power, no want of due process of law could possibly result, because that body chose to impose an excise on artificially colored oleomargarine and not upon natural butter artificially colored. The judicial power may not usurp the functions of the legislative in order to control that branch of the government in the performance of its lawful duties. This was aptly pointed out in the extract heretofore made from the opinion in Treat v. White, 181 U. S. 264.

Let us concede that if a case was presented where the abuse of the taxing power was so extreme as to be beyond the principles which we have previously stated, and where it was plain to the judicial mind that the power had been called into play, not for revenue, but solely for the purpose of destroying rights which could not be rightfully destroyed consistently with the principles of freedom and justice upon which the constitution rests, that it would be the duty of the courts to say that such an arbitrary act was not merely an abuse of a delegated power, but was the exercise of an authority not conferred. This concession, however, like the one previously made, must be without influence upon the decision of this cause for the reasons previously stated; that is, that the nanufacture of artificially colored oleomargarine may be prohibited by a free government without a violation of fundamental rights.


The Chief JUSTICE, MR. Justice Brown, and MR. JUSTICE PECKHAM dissent.

7. The Federal Police Power as Affecting Commerce.




223 U. S. 1. January 15, 1912.

Four cases were brought upon writs of error to the Supreme Court of the United States to test the constitutionality of the Federal Employers' Liability Act of April 22, 1908, amended by the Act of April 5, 1910.* The case of Edgar G. Mondou against the New York, New Haven, and Hartford Railroad Company was instituted in one of the Superior Courts of the State of Connecticut to recover for personal injuries suffered by Mondou, a locomotive fireman, while in the employ of the defendant railroad company,-a common carrier engaged in commerce between some of the States. The injuries proximately resulted from the negligence of Mondou's fellow servants, also in the employ of the defendant company, and the right to be compensated for the injuries received was based solely on the Act of Congress of April 22, 1908, which prescribed the liability of common carriers to their employees. The railroad company claimed that Congress had exceeded "its power to regulate commerce by such legislation, that the acts therefore were repugnant to the Constitution, and even if the acts were valid, the suit to enforce them could not be brought in a State court.” The other cases presented substantially the same questions, and were considered and decided as one with the Mondov case. They were as follows: Bessie Babcock, Administratrix v. Northern Pacific Railway Company, an action commenced in the Circuit Court of the United States for the District of Minnesota, which was decided against the railway company; Mary A. Walsh, Administratrix, v. New York, New Haven, and Hartford

Note.-The Acts of Congress of April 22, 1908, and April 5, 1910, known as “The Federal Employers' Liability Act,” are contained in the Appendix.

Railroad Company, and New York, New Haven, and Hartford Raiiroad Company v. Mary A. Walsh, Administratrix, which were cross writs of error in the same case, arising in the Circuit Court of the United States for the District of Massachusetts, and taken to the Supreme Court to review a decision which was partly in favor of and partly against each party to the litigation.

MR. JUSTICE Van DEVANTER, after stating the cases as above, delivered the opinion of the court.

The principal questions presented in these cases as discussed at the bar and in the briefs are: 1. May Congress, in the exertion of its power over interstate commerce, regulate the relations of common carriers by railroad and their employees while both are engaged in such commerce? 2. Has Congress exceeded its power in that regard by prescribing the regulations which are embodied in the act in question ? 3. Do those regulations supercede the laws of the states in so far as the latter cover the same field ? 4. May rights arising under those regulations be enforced, as of right, in the courts of the States when their jurisdiction, as fixed by local laws, is adequate to the occasion ?

The clauses in the Constitution (Art. I, § 8, Clauses 3 and 18) which confer upon Congress the power "to regulate commerce : among the several States," and "to make all laws which shall be necessary and proper" for the purpose, have been considered by this court so often and in such varied connections that some propositions bearing upon the extent and nature of this power have come to be so firmly settled as no longer to be open to dispute, among them being these :

1. The term “commerce” comprehends more than the mere exchange of goods. It embraces commercial intercourse in all its branches, including transportation of passengers and property by common carriers, whether carried on by water or by land.

2. The phrase "among the several States” marks the distipction, for the purpose of governmental regulation, between commerce which concerns two or more States and commerce which is confined to a single State and does not affect other States,—the power to regulate the former being conferred upon Congress and the regulation of the latter remaining with the States severally.

3. “To regulate,” in the sense intended, is to foster, protect, control, and restrain, with appropriate regard for the welfare of those who are immediately concerned and of the public at large.

4. This power over commerce among the States, so conferred upon Congress, is complete in itself, extends incidentally to every instrument and agent by which such commerce is carried on, may be exerted to its utmost extent over every part of such commerce, and is subject to no limitations save such as are prescribed in the Constitution. But, of course, it does not extend to any matter or thing which does not have a real or substantial relation to some part of such commerce.

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