Misc RM 52    Misc reference material

Reference Material - For Information Only!


Over time we have collected a lot of reference material.

We figured it would be better to share with all rather than just delete it.

If you want it, keep it, otherwise just delete it. 

Due to the volume it will take more than one mailing.


The Court in Yates Vs. Village of Hoffman Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) held that, "Not every action by any judge is in exercise of his judicial function.  It is not a judicial function for a Judge to commit an intentional tort even though the tort occurs in the Courthouse, when a judge acts as a Trespasser of the Law, when a judge does not follow the law, the judge loses subject matter jurisdiction and The Judge's orders are void, of no legal force or effect"! The United States Supreme Court has stated that "No State legislator or executive or judicial officer can war against the Constitution without violating his Undertaking to support it". Cooper Vs. Aaron. 358 U.S. 1 78 S.Ct. 1401 (1958).


Direct/Indirect Cases ... Context and Commentary

As long as the Steward Machine Case is kept within its context, the decision rendered by the Supreme Court makes perfect sense.  The case was about "privileges" associated with the operation of "business," not that every conceivable activity was "business".

Excise taxes had always been levied upon the "gains and profits" derived from the operation of business, whereas, excise taxes upon the "privilege" of employing others in the operation of that "business" had never been attempted.  The court simply concluded that both fell within the operation of an excise.

For a better understanding of what the court was saying read "Taxing the Exercise of Natural Rights" by John M. Maguire, Harvard Legal Essays, 1934.  This essay was cited by the court in the Steward Machine case as authority for the imposition of excise taxes upon "business privileges," not common labor for hire [common law, master-servant relationship], as such would be seen as "poll" or "capitation" taxes.

There were three cases, dealing with the new Social Security Act, decided by the court that day.  The order in which the court gave its decisions seems rather interesting. The case numbers are 301
U.S. 495, Carmichael v. So. Coal & Coke; 301 U.S. 548, Steward Machine v. Davis; and 301 U.S. 601, Helvering v. Davis.  Justice Cardozo gave the Opinion of the Court in the Steward Machine and Helvering Cases, whereas Justice Stone gave the Opinion of the court in Carmichael.  The Carmichael Case was the last case decided that day, and the only case that even mentions "employees" as part of the decision.  In that Case Justice Stone made it clear that the "employee's tax" was not under consideration, and that if it were, those sections imposing the tax were separatable from the Social Security Act.  Read Commissioner Helvering's questions presented to the Supreme Court at 301 U.S.
601, 639.  Had the court answered question number 2, the Social Security Act would have failed.  That question has yet to be answered.

Of interest are:
Tyler v. U.S., 281 U.S. 497 (1930) where Justice Sutherland defined the operation of "indirect" taxes as: "A tax laid upon the happening of an event, as distinguished from its tangible fruits, is an indirect tax which Congress, in respect of some events not necessary now to be described more definitely, undoubtedly may impose."

United States v. Wells Farge Bank, 485 U.S. 351 (1988) where Justice Brennan deals directly with the concept presented by the Steward Machine Case in his definition of "excise tax": "the property was exempt from direct taxation, but certain privileges of ownership, such as the right to transfer the property, could be taxed.  Underlying this doctrine is the distinction between an excise tax, which is levied upon the use or transfer of property even though it might be measured by the property's value, and a tax levied upon the property itself.  The former has historically been permitted even where the latter has been constitutionally or statutorily forbidden."

To put this in perspective see:
Adkins v. Children's Hospital, 261 U.S. 525, (1923).  Here Justice Sutherland cites several Supreme Court Cases involving the "inalienable right" to contract for the sale, or purchase, of labor.  He quotes: "Included in the right of personal liberty and the right of private property-partaking of the nature of each-is the right to make contracts for the acquisition of property.  Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of peoperty.  If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long established constitutional sense.  The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money." {Coppage v. Kansas, 236 U.S. 1, (1914).

See also:
Redfield v Fisher, 292 Pac. 813, (1930)
"An individual, unlike a corporation, cannot be taxed for the privilege of existing and owning property"  Note: This has nothing to do with the "privilege" of engaging in "business," which governments [State and Federal} have always had the right to tax.

The question should never have been; what is income? It should have been; what is "business"?  The Federal Income Tax is now, and always has been, a tax upon "net-income."  It is a "business" excise tax, upon the "privilege" of receiving gain [profit] from commercial and financial activities.  The tax has nothing to do with people, except in relation to how those people derived "gains and profits" from the use and employment of capital and or labor [property]. 

Congress departed from the "net-income" tax in 1942 when they lowered the "personal exemption" to a point below the "wages" earned by common labor, then included those common laborers within the "net-income" tax through the new concept of "adjusted gross income". [The definition, provided by Congress, for the term "adjusted gross income" is: the net-income derived from business and professional activities, and the gross "wages" of the common law employee.]  For "business owners" there is no difference between the deductions allowed by section 62 (a) (1) and those allowed by section 63 (a), such "expenses" are deducted from gross income (business receipts) above the line, i.e., in order to establish net-income subject to Subtitle A taxes.  Whereas the employee's "wages" (gross receipts) are shown on the same line as their employer's net profits.  Follow the entries on the 1040 tax return; line 22 is "total income".  Really, what happened to the business receipts?  Follow section 22 (n) through the transition from the 1939 to the 1954 Code section 62 (a), it did not change.  Gross income was defined under section 22(a) of the 1939 Code as "gains, profits and income derived from", as such; it did not include the employee's gross receipts (wages) as such receipts were not "derived from" commercial and financial receipts.  Congress invented the concept of "adjusted gross income" so that they could include the employee annual receipts in commercial net income, thereby making the employee's "wages" comparable to their employer's "compensation for personal service."  The "withholding tax" is not a "tax," it is a collection method for "taxes" imposed under Subtitle A.

We are stuck with the "Income Tax," until the Supreme Court is forced to deal with the question of "business," and the substance of the Federal Income Tax under Subtitle A.


A general power is given to Congress to lay and collect taxes, of every kind or nature, without any restraint, except on exports; but two rules are prescribed for their government, namely, uniformity and apportionment: three kinds of taxes, to wit, duties, imposts, and excises, by the first rule, and capitation or other direct taxes, by the second rule.
Hylton v. U.S., U.S.Va.1796, 3 U.S. 171, 3 Dall. 171, 1 L.Ed. 556.

Taxation by Congress is limited to those forms of taxes described in the Constitution, and with respect to them the only limitations are that a direct tax shall be apportioned between the states and that duties, imposts, and excises shall be uniform and levied only for the purposes specified.

Davis v. Boston & M. R. Co., C.C.A.1 (Mass.) 1937, 89 F.2d 368.

Power of Congress to impose excise taxes is subject only to limitation that they be for the public welfare and be uniform throughout the United States.
Chas. C. Steward Mach. Co. v. Davis, C.C.A.5 (Ala.) 1937, 89 F.2d 207, certiorari granted 57 S.Ct. 673, 300 U.S. 652, 81 L.Ed. 863, motion denied 57 S.Ct. 755, affirmed 57 S.Ct. 883, 301 U.S. 548, 81L.Ed. 1279.

The power of Congress to tax, as given in the Constitution, has only one exception and two qualifications; Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uniformity.

Kelly v. Lewellyn, W.D.Pa.1921, 274 F. 108.





Top Ten Civil Liberties Abuses of the Income Tax by Chris Edwards
Director of Fiscal Policy Studies, Cato Institute

Any tax system creates a threat to individual liberty because "the power to tax involves the power to destroy," as Chief Justice John Marshall observed.[1] But the federal income tax and its enforcement harm civil liberties much more than necessary to raise needed funds for the government. Certainly, the IRS performs poorly and too easily abuses the rights of citizens. But ultimately Congress is to blame for creating an excessively complex and high-rate tax system. New laws to increase taxpayer protections and replacement of the income tax with a simpler, flatter consumption-based tax could greatly reduce the following 10 areas of civil liberties abuse.

1. "Vertical" Inequality. Although equality under the law is a bedrock American principle, the income tax treats citizens unequally. "Vertical" inequality is created by hugely different tax burdens on citizens at different income levels. For example, households earning between $30,000 and $75,000 pay an average 10 percent of their income in federal income taxes, compared to 27 percent for households earning more than $200,000.[2] Fully 36 percent of U.S. households pay no income tax.[3] Besides violating the spirit of equal protection guarantees of the Constitution, such unequal burdens distort perceptions about the costs and benefits of government because programs appear to be free of cost to many.

2. "Horizontal" Inequality. Even people with similar incomes are treated unequally by the many exemptions, deductions, credits, and other intricacies of the income tax. For example, there are 59 income tax provisions that vary depending on marital status.[4] Likewise, the tax differences between homeowners and renters with the same incomes can be thousands of dollars because of itemized deductions for property taxes and mortgage interest. Another disparity is the unequal access to savings vehicles in the tax code depending on individuals' work situations and other factors. If all individual savings were exempt from tax, as under a consumption-based system, individuals would be treated more equally.

3. Complexity, Ambiguity, and Uncertainty. Certainty in the law is a bulwark against arbitrary and abusive government. But there is no certainty under the income tax because it rests on an inherently difficult-to-measure tax base, uses no consistent definition of "income" or other concepts, and is a labyrinth of narrow and limited provisions created by politicians intent on social engineering.[5] The current IRS commissioner concedes that the income tax has become too complex for accurate administration, which is evident in the 28 percent IRS error rate on phone inquiries and 60 percent error rate on audits.[6] Business tax rules are so ambiguous that many disputes drag on for years and are valued in the hundreds of millions of dollars.[7] Individuals are baffled by the complex rules on capital gains, pension and savings plans, and a growing list of targeted incentives. Those complexities would be eliminated under a flat consumption-based tax system.

4. Huge Size and Instability of Tax Law. Citizens are required to know the nation's laws and comply with them. Yet federal tax rules are massive in scope and constantly changing. Tax laws, regulations, and related documentation span 45,662 pages.[8] There were 441 changes to tax rules in last year's tax-cut law alone.[9] That law guaranteed a decade of tax instability with phased-in changes lasting until 2010. Income tax instability is typified by changes in taxes on capital. There have been 25 substantial changes in the treatment of long-term capital gains since 1922.[10] Pension tax laws have been substantially changed nearly every year since the early 1980s, creating regulatory backlogs and leaving employers unsure about how to comply.[11] Last year's tax-cut law alone had 64 separate rule changes for pension and saving plans.[12]

5. Lack of Financial Privacy. The broad-based income tax necessitates a large invasion of financial privacy that a low-rate consumption-based tax could avoid. The IRS regularly gains access to a myriad of personal records, such as mortgage records, credit card data, phone records, banking and investment records, real property transaction data, and personal correspondence. This broad IRS authority to obtain records without court supervision has been referred to by the Supreme Court as "a power of inquisition."[13]

6. Denial of Due Process. The Fifth Amendment right to due process is ignored in many respects by the federal income tax regime. Due process requires that government provide accused citizens a clear notice of a claim against them and allow the accused a hearing before executing enforcement action. But the IRS engages in many summary judgments, and enforces them prior to any judicial determinations. Moreover, the very complexity and ambiguity of the income tax seems to violate due process. In 1926, the Supreme Court noted that a statute that is "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates that first essential of due process of law."[14]

7. Shifting of the Burden of Proof. For non-criminal tax cases -- the vast majority of cases -- the tax code reverses the centuries-old common law principle that the burden of proof rests with the accuser. Except in some narrow circumstances, the IRS does not have to prove the correctness of its determinations. When the IRS makes erroneous assessments, as it often does, citizens carry the burden to prove that they are wrong. Efforts to shift the burden of proof to the IRS in the 1998 IRS Restructuring and Reform Act did not accomplish that goal. In addition, the new rules do not apply to the 97 percent of IRS actions that are deemed administrative in nature.[15]

8. No Trial by Jury in Tax Court. Despite Sixth and Seventh Amendment guarantees of trial by jury, the federal tax system carefully sidesteps such protections. To contest an IRS tax calculation prior to assessment, one must file a petition in the U.S. Tax Court. But since this is an administrative court, not an Article III court, no jury trial is required. To obtain a jury trial and related rights for civil tax cases, one must file suit in a U.S. District Court. But before that can happen, the alleged tax, penalties, and interest must be paid in full. And if the citizen wins, there is a burdensome route to retrieving the disputed money. For most people, those rules effectively eliminate the right to trial by jury in tax cases.

9. Unreasonable Searches and Seizures. In most situations, the Fourth Amendment guarantees that, before the government can search private property and seize records, it must demonstrate to a court that there is "probable cause" to believe that lawless conduct exists. However, the IRS's summons authority under tax code section 7602 allows it to obtain records of every description from any person without showing probable cause and without a court order. There has also been an explosion in information reporting required by the IRS and a big expansion in its computer searching for personal records. Recently, the IRS won the power to access financial data on Visa cards issued by foreign banks. Many examples of abusive IRS searches and seizures were revealed in U.S. Senate hearings in 1997.[16]

10. Forced Self-Incrimination. The requirement to file tax returns sworn to under penalty of perjury operates to invalidate the Fifth Amendment protection against self-incrimination. Citizens face a legal dilemma. On the one hand, refusing to file a return would expose a citizen to prosecution for failure to file. On the other hand, disclosing information sought in tax returns constitutes a waiver of Fifth Amendment protections. The IRS can and does release that information to federal, state, and local agencies for both tax and non-tax law enforcement purposes.

1. McCulloch v. Maryland, 17 U.S. 316 (1819).
2. IRS, Statistics of Income Bulletin, Fall 2001. Data are for 1999. Income concept is adjusted gross income.
3. Joint Committee on Taxation, JCS-1-02, January 17, 2002,
www.house.gov/jct. Data are for 2001.
4. Daniel J. Pilla, "A Monument of Deficient Wisdom," Report no. 165, Institute for Policy Innovation, 2001, p. 15.
5. Chris Edwards, "Simplifying Federal Taxes: The Advantages of Consumption-Based Taxation," Cato Institute, October 2001.
6. Pilla, p. 4.
7. For example, in 1997 Columbia/HCA Corp. fought the IRS over a tax item worth $267 million. The IRS ended up accepting $71 million. Tax Notes, December 8, 1997, p. 1098.
8. CCH, Inc., news release, January 14, 2000. This is the page count of the Standard Federal Tax Reporter,
9. "Tax Report," Wall Street Journal, May 30, 2001, p. 1. Based on information from CCH, Inc.
10. Edwards, p. 10.
11. Joint Committee on Taxation, Study of the Overall State of the Federal Tax System, vol. 2, p. 150,
12. Author's count.
13.United States v. Powell, 379 U.S. 48, 57 (1964).
14. Connally v. General Construction Co., 269 U.S. 385 (1926).
15. Pilla, p. 23.
16. "Washington in Brief," Washington Post, March 29, 2002, p. A11




"The Government of the United States, therefore, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implications." 

Buffington (Collector) v. Day, 11 Wall. 113, 78 U.S. 122 (1871).







To your Congressman and Senators

According to the IRS Mission Statement, the Federal Tax Regulations, the Internal Revenue Manual, the US Supreme Court, and expert testimony given before Congress, the tax system is based on voluntary compliance:

"The mission of the Service is to encourage and achieve the highest possible degree of voluntary compliance with the tax laws and regulations and to maintain the highest degree of public confidence in the integrity and efficiency of the Service." Federal Register, Volume 39, #62 (11572), March 29, 1974.

"The purpose of publishing revenue rulings and revenue procedures in the Internal Revenue Bulletin is to promote correct and uniform application of the tax laws by Internal Revenue Service employees and to assist taxpayers in attaining maximum voluntary compliance." Federal Tax Regulations, Section 601.601.

"The tax system is based on voluntary compliance." Federal Tax Regulations, Section 601.602.

"Taxpayers in the United States assess their tax liabilities against themselves and pay them voluntarily. This system of assessment and payment is based on the principle of voluntary compliance." Internal Revenue Manual, Section 20:123 (7/15/96).

 "Of course, the Government can collect the tax from a District Court suitor by exercising its power of distraint ~ if he does not split his action ~ but we cannot believe that compelling resort to this extraordinary measure is either wise or in accord with congressional intent. Our system of taxation is based upon voluntary assessment and payment, not upon distraint."
US Supreme Court, Flora v. United States, 362 US 179, 80 S.Ct. 630 (1960).

"Let me point this out now. Your income tax is 100 percent voluntary tax, and your liquor tax is 100 percent enforced tax. Now the situation is as different as day and night. Consequently, your same rules just will not apply."
Testimony of Dwight E. Avis, Head of the Alcohol and Tobacco Tax Division of the Bureau of Internal Revenue, before the House Ways and Means Committee on Restructuring the IRS (83rd Congress, 1953).

Neither the Federal Tax Regulations nor the Internal Revenue Code define the term `voluntary compliance'. Hence plaintiff relies on the definitions of `voluntary' given in Corpus Juris Secundum (C.J.S. 92: 1029, 1030, 1031):

"The word `voluntary', which connotes an agreement, implies willingness, volition, and intent. It suggests a freedom of choice and refers to the doing of something which a person is free to do or not to do, as he so decides.

Although for legal purposes the word `voluntary' is considered to be so simple and in such general use that it need not be defined, it has been defined variously as meaning acting by choice, acting of one's self, without compulsion, or without being influenced by another; acting with willingness; done by design or intention; purposed; intended; done of his or its own accord; done of or due to one's own accord or free choice; produced by an act of choice; proceeding from the will or from one's own choice or full consent.

`Voluntary' is further defined as meaning free; willing; not accidental; spontaneous; proceeding from the free and unrestrained will of the person; proceeding from the spontaneous operation of the party's own mind, free from influence of any extraneous disturbing cause; of one's own will without being moved, influenced, or impelled by others; unconstrained by external interference, influence, or force; unimpelled by another's influence; not compelled, prompted, persuaded, or suggested by another; acting without constraint by extraneous force; without compulsion.

In its legal aspect, and as commonly used in law, the word `voluntary' is defined as meaning gratuitous; without valuable consideration; acting, or done, of one's own free will without valuable consideration; acting, or done, without any present legal obligation to do the thing done."

1. According to the IRS Mission Statement, the income tax system is based on voluntary compliance.

2. According to the Federal Tax Regulations (sections 601.601 and 601.602) the income tax system is based on voluntary compliance.

3. The Internal Revenue Manual (section 20:123) explicitly states
that the payment of income tax is voluntary.

4. The US Supreme Court has ruled in Flora v. United States (supra) that the income tax system is based upon voluntary payment, not upon distraint.

5. Dwight E. Avis, Head of the Alcohol and Tobacco Tax Division of the IRS, testified before Congress that income tax is 100 percent voluntary.

6. According to Corpus Juris Secundum (supra), various courts have ruled that the meaning of the word `voluntary' includes: "the doing of something which a person is free to do or not to do; acting without compulsion; acting without constraint by external interference, influence, or force; acting without any present legal obligation to do the thing done."

7. _________ did not voluntarily pay income taxes for the years the IRS sent Notice of Levies upon my earnings.

8. IRS agents issued involuntary Notice of Liens against ________ for the sum of $_____.

1. __________ argues that according to the true and correct usage of the word `voluntary' in standard English and in legal English (as outlined in Corpus Juris Secundum), he cannot ~ by definition ~ be forced or compelled to do something that is voluntary, such as complying with a voluntary law.

2. _________ argues that since the law clearly and unambiguously states that the payment of income tax is voluntary, IRS Agents cannot lawfully force or compel me to pay income tax. __________ argues that his position is supported by Tietjen v. Heberlein, 171 P. 928, 54 Mont. 486; Akio Kuwahara v. Acheson, D.C. Cal., 96 F. Supp. 38, 42; Brown v. State, 135 S.E. 765, 766, 36 Ga. App. 84; Coker v State, 33 S.E. 2d 171, 174, 199 Ga. 20; Perryman v. State, 12 S.E. 2d 288, 391, 63 Ga. App. 819; in which the courts ruled that a voluntary action is one that is done without compulsion or external force.

3. _________ argues that he has the freedom of choice to pay or not to pay income tax without any legal obligation and that my position is supported by Touli v. Santa Cruz County Title Co., 67 P.2d 404, 406, 20 Cal. App. 2d 495, in which the court ruled that a voluntary action is one that is done without any legal obligation to do the thing done.

4. _________ argues that according to the IRS Mission Statement, the Federal Tax Regulations, the Internal Revenue Manual, the US Supreme Court, and the testimony of Dwight Avis before the House Ways and Means Committee, voluntary compliance forms the foundation of the entire income tax system and is not a subordinate or conditional regulation.

5. __________ argues that section 6331 of the Internal Revenue Code, which lays out the rule concerning federal Notice of Levy, does not form the foundation of the income tax system and is therefore subordinate to and conditional upon the principle of voluntary compliance, which always takes precedence over it.

6. __________ argues that although IRS Agents have the legal right to issue a federal Notice of levy under section 6331, such a Notice must be a voluntary Levy in order to conform to the principle of voluntary compliance, and that IRS does not have the legal right to issue an involuntary federal Notice of levy without a court order per IRS Code Sections 7402, 7403, which makes it FRAUD.

7. __________ argues that the involuntary federal Notice of Levy issued against me by IRS under section 6331 of the Internal Revenue Code violated the principle of voluntary compliance and was erroneous and unlawful. The Notice of Levy applies only to Government Employees, of which I am not.

8. ___________ argues that IRS acted erroneously and unlawfully by compelling money to be withheld from my earnings by means of an involuntary federal Notice of Levy, because the involuntary compliance thus obtained violated the principle of voluntary compliance.

9. __________ argues that since the payment of income tax is voluntary, I have never had any legal or financial obligation toward IRS and has never owed IRS anything, and that any and all claims against me by IRS are false and without merit.

1. The law clearly and unambiguously states that the payment of income taxes is voluntary, as codified in the IRS Mission Statement and in Sections 601.601 and 601.602 of the Federal Tax Regulations, and affirmed by Section 20:123 of the Internal Revenue Manual, by the US Supreme Court in Flora v. US, and by the expert testimony of Dwight E. Avis before Congress.

2. The principle of voluntary compliance forms the foundation of the entire income tax system, and is not a subordinate or conditional regulation.

3. Section 6331 of the Internal Revenue Code, which lays out the rule concerning federal Notice of Levy, does not form the foundation of the income tax system and is therefore subordinate to and conditional upon the principle of voluntary compliance, which always takes precedence over it.

4. IRS does not have the legal right to issue an involuntary federal Notice of Levy under section 6331 of the Internal Revenue Code, because such a NOTICE violates the principle of voluntary compliance. Since the law clearly states that the payment of income taxes is voluntary, IRS acted erroneously and unlawfully by compelling the sum of $________to be withheld from my earnings under protest by means of an involuntary federal Notice of Levy upon my employers.

5. According to the true and correct usage of the word `voluntary' in standard English and in legal English, _____________ cannot be compelled to do something that is voluntary, such as the payment of income tax ~ which is voluntary. By compelling ______________ to pay income tax by means of an involuntary federal Notice of Levy, IRS violated __________ intrinsic right to freedom of choice in the matter without compulsion or legal obligation.

____________ demands that you will uphold the true and correct usage of the word `voluntary', and will uphold my intrinsic legal right under the principle of voluntary compliance to exercise freedom of choice to comply or not to comply with the income tax laws without compulsion or legal obligation, and demands that you inform the IRS as follows:

a) To refund to ______________ the sum of $_________plus interest.

b) That in view of ___________ decision not to voluntarily comply with the income tax system; you will forbid IRS from contacting me against my wishes and from directly or indirectly interfering in my right to earn a living.





A Right Cannot Be Taxed

Passenger Cases Mr. Chief Justice Taneys Opinion 7H, 1848, P. 221 [Maybe Norris v. City of Boston, and Smith v. Turner?]

In speaking of the taxing power in this case, I must, however, be understood as speaking of it as it is presented in the record, that is to say, as the case of passengers from a foreign port. The provisions contained in that law relating to American citizens who are passengers from the ports of other States is a different question, and involves very different considerations...We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States. And a tax imposed by a State for entering its territories or harbors is inconsistent with the rights which belong to the citizens of other States as members of the Union, and with the objects which that Union was intended to attain...

It, of course, needs no argument to prove that such a power over the intercourse of persons passing from one State to another is not granted to the federal government by the power to regulate commerce among the several States.

McCray v. US, 195 US 27

p.27 ...nor can the judiciary inquire into the motive or purpose of Congress in adopting a statute levying an excise tax within constitutional power...power to tax...that power being unrestrained except as limited by the Constitution.

P.31 Congress has no power whatever to regulate the internal commerce of the States, which was expressly reserved to the States by the Tenth Amendment. Gibbons v. Ogden, 9Wheat.1, 194,203; License Cases, 5How.504, 574,599; Passenger Cases, 7How.283, 400; License Tax Cases, 5Wall.462,470-471; US v Dewitt, 9Wall.41,44; Trade-Mark Cases, 100US82,96-97; US v E.C.Knight Co.,156US1,12,13; The police Power was never surrendered by the States. New Orleans Gas Co.v Louisiana Light Co., 115 US 650,661; see also, In re Rahrer, 140 US 545, 554, 556; Plumley v Massachusetts, 155US461, 472; US v E.C. Knight Co., 156 US 1, 11,13; Connolly v. Union Sewer Pipe Co., 184 US 540, 558. The act now before the court, if grounded upon the attempt to regulate the manufacture of dairy products and oleomargarine and their sale in the internal commerce of the States, would be clearly beyond the powers of Congress, and unconstitutional. US v. Dewitt, supra; US v Fox 94 US 315,320; Trade-Mark cases; Covi ngton &c Bridge Co. v. Kentucky, 154US204,210; US v Knight; US v. Boyer, 85 Fed. Rep. 424, 432.

P. 35 & 36 The right to earn ones livelihood by any lawful calling constitutes the liberty and property of the individual and one of the inalienable privileges and immunities of every citizen of the United States which are secured by the Constitution. Butchers Union Co. V. Crescent City Co., 111US746, 757, 764; Powell v. Pennsyl. 127 US 678, 684; Allgeyer v. Louisiana, 165US578, 589; People v. Marx, 99NY 377, 386; People v. Gillson, 109 NY389, 399;...The established rule is that the intention to tax in a particular manner must be expressed in clear and unambiguous language, else it cannot be enforced, and that words of exception are to receive a liberal rather than a constricted construction, to the end that the burdens imposed upon individuals may be confined rather than extended. The rule together with its supporting authorities is stated in Eidman v. Martinez, 184US578, 583. See also Adams v. Bancroft, 3 Sumner, 384, 387; Schoenemann v. US, 119 Fed.Rep.584, 587; In re Southern Pac. Co. 82 Fed. Rep. 311, 313; 87 Red.Rep. 863; Matheson & Co. v. US, 71 Fed.Rep.394, 395; Rice v. US, 53 Fed.Rep.910, 911; Dean v. Charlton, 27 Wis. 522, 526.

P. 62-63...the taxing laws are void, because they violate those fundamental rights which it is the duty of every free government to safeguard, and which, therefore, should be held to be embraced by implied though none the less potential guaranties, or in any event to be within the protection of the due process clause of the Fifth Amendment.

...if by the perverted exercise of such power so great an abuse was manifested as to destroy fundamental rights which no free government could consistently violate, that it would be the duty of the judiciary to hold such acts to be void upon the assumption that the Constitution by necessary implication forbade them.

...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 cannot be said that such repression a corporation has no rights! destroys such 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.

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 manufacture of artificially colored oleomargarine may be prohibited by a free government without a violation of fundamental rights.


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