rights," the Court said: "The errors relied upon embrace not only the contention that the act of Congress imposing the tax is repugnant to the Constitution, but also that the penalty was wrongfully enforced, because the one-quarter of a cent per pound which had been paid on the oleomargarine was the only tax to which it was liable under the act of Congress when rightly construed. it is insisted that the acts in question are void, because the burdens which they impose are repugnant to both the 5th and 10th Amendments. To the 5th Amendment, because the amount of the tax is so out of proportion to the value of the property taxed as to destroy that property, and thus amount to a taking thereof without due process of law." In holding that the motives of Congress in imposing the tax in question on artificially colored oleomargarine are not to be inquired into by the judiciary, the Court added: "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. . . It hence results that, even although it be true that the effect of the tax in question is to repress the manufacture of artificially colored oleomargarine, it can not be said that such repression destroys rights which no free government could destroy, and therefore, no ground exists to sustain the proposition that the judiciary may invoke an implied prohibition upon the theory that to do so is essential to save such rights from destruction. And the same considera

tions dispose of the contention based upon the due process clause of the 5th Amendment."

§ 67. U. S. v. Ju Toy 19-Due process of law in Chinese exclusion cases-Conclusiveness of decision of executive officer. In this case it was held that the provision of the act of August 18, 1894, making the decision of the proper department on the right of a person of Chinese descent to enter the United States conclusive on the Federal Courts in habeas corpus proceedings, when there has been no abuse of authority, even when the right of entry is based of citizenship, does not violate the guarantee of due process contained in the Fifth Amendment. In the words of the Court: "If for the purpose of argument, we assume that the 5th Amendment applies to him (the petitioner), and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of opinion that with regard to him due process of law does not require judicial trial. That is the result of the cases we have cited, and the almost necessary result of the power of Congress to pass exclusion laws. That the decision may be intrusted to an executive officer, and that his decision is due process of law, was affirmed and explained in Nishimura Ekiu v. United States, 142 U. S. 651, 660, and in Fong Yue Ting v. United States, 149 U. S. 698, 713, before the authorities to which we have already referred." At an earlier stage of its opinion the Court had said: "The broad question is presented whether or not the decision of the Secretary of Commerce and Labor is conclusive. It was held in United States v. Sing Tuck, 194 U. S. 161, 167, that the act of August 18, 1894, purported to make it so, but whether the statute could have that effect constitutionally was left untouched by a reference to cases where an opinion already had been expressed. It is established, as

we have said, that the act purports to make the decision of the Department final, whatever the ground on which the

19-198 U. S. 253.

right to enter the country is claimed,—as well when it is citizenship as when it is domicile, and the belonging to a class excepted from the exclusion acts. United States v. Sing Tuck, 194 U. S. 161, 167; Lem Moon Sing v. United States, 158 U. S. 538, 546, 547. It also is established by the former case and others which it cites that the relevant portion of the act of August 18, 1894, is not void as a whole. The statute has been upheld and enforced. But the relevant portion being a single section, accomplishing all its results by the same general words, must be valid as to all that it embraces, or altogether void. It necessarily follows that when such words are sustained, they are sustained to their full extent."

§ 68. South Carolina v. U. S.20-Due process as a limitation on federal power to tax dispensing agents of a state. In stating the case the Court said that the important question "is whether persons who are selling liquor are relieved from liability for the internal revenue tax by the fact that they have no interest in the profits of the business, and are simply the agents of a state which, in the exercise of the sovereign power, has taken charge of the business of selling intoxicating liquors. In answering that question, the Court, after stating that "By the 1st clause of § 8 of article 1 of the Constitution, Congress is given the 'power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States," "-admitted that such grant of power was limited by several enumerated provisions of the Constitution, the last of which, "Article 5 of the amendment provides that no one shall be deprived of 'life, liberty, or property without due process of law.'"' Notwithstanding that, and all the other enumerated limitations upon the taxing power in question, the court held that "whenever a state engages in a business which is

20-199 U. S. 437.

of a private nature, that business is not withdrawn from the taxing power of the nation. For these reasons we think that the license taxes charged by the Federal government upon persons selling liquor are not invalidated by the fact that they are the agents of the state, which has itself engaged in the business."

§ 69. Hale v. Henkel 21-Effect of statutory immunity upon constitutional protection against self-incrimination. The Court said: "Appellant also invokes the protection of the 5th Amendment to the Constitution, which declares that no person shall be compelled in any criminal case to be witness against himself,' and in reply to various questions put to him he declined to answer, on the ground that he would thereby incriminate himself. The answer to this is found in a proviso to the general appropriation act of February 25, 1903, that 'no person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit, or prosecution under said acts,' of which the antitrust law is one, providing, however, that 'no person so testifying shall be exempt from prosecution or punishment for perjury committed in so testifying.' While there may be some doubt whether the examination of witnesses before a grand jury is a suit or prosecution, we have no doubt that it is a 'proceeding' within the meaning of the proviso. The word should receive as wide a construction as is necessary to protect the witness in his disclosures, whenever such disclosures are made in pursuance of a judicial inquiry, whether such inquiry be instituted by a grand jury, or upon the trial of an indictment found by them. The word 'proceeding' is not a technical one, and is aptly used by the courts to designate an inquiry before a grand jury. The interdiction of the 5th Amendment operates only where a witness is asked

21-201 U. S. 43.

to incriminate himself,-in other words, to give testimony which may possibly expose him to a criminal charge. But if the criminality has already been taken away, the amendment ceases to apply." After citing with approval the cases of Counselman v. Hitchcock, 142 U. S. 547; and Brown v. Walker, 161 U. S. 591, the Court proceeded to say: "But it is further insisted that, while the immunity statute may protect individual witnesses, it would not protect the corporation of which appellant was the agent and representative. This is true, but the answer is that it was not designed to do so. The right of a person under the 5th Amendment to refuse to incriminate himself is purely a personal privilege of the witness."

Despite the fact that the case of McAllister v. Henkel, 201 U. S. 90, differed from the foregoing "in two important particulars: First, in the fact that there was a complaint and charge made on behalf of the United States against the American Tobacco Company and the Imperial Tobacco Company under the so-called Sherman act, and second, that the subpoena pointed out the particular writings sought for (three agreements), giving in each case the date, the names of the parties, and in one instance, a suggestion of the contents," the court concluded "that the immunity provided by the 5th Amendment against self-incrimination is personal to the witness himself, and that he can not set up the privilege of another person or of a corporation as an excuse for a refusal to answer; in other words, the privilege is that of the witness himself, and not that of the party on trial." And in the case of Nelson v. United States, 201 U. S. 92, the same doctrine was so extended as to compel a witness to testify under the immunity statutes, even though they may fail to afford immunity from prosecution in the state courts for the offense disclosed.

§ 70. In re Moran 22-Claim that prisoner was convicted without indictment and compelled to testify against himself. This was a petition for habeas corpus

22-203 U. S. 96.

Due Process-10