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apportionment, also established in the constitution, secures the district from any oppressive exercise of the power to lay and collect direct taxes.
After giving this subject its serious attention, the court is unanimously of opinion that congress possesses, under the constitution, the power to lay and collect direct taxes within the district of Columbia, in proportion to the census directed to be taken by the constitution, and that there is no error in the judgment of the circuit court.
5 Wh. 325.
OWINGS v. SPEED AND OTHERS.
FEBRUARY TERM, 1820.
[5 Wheaton's Reports, 420 – 424.]
In the following opinion of the court,* delivered by Chief Justice Marshall, we have all the facts of this case :
This was an ejectment brought by the plaintiff in the circuit court of the United States for the district of Kentucky, to recover a lot of ground lying in Bardstown. This town was laid off, in 1780, on a tract of land consisting of one thousand acres, for which, in 1785, a patent was issued by the commonwealth of Virginia to Bard and Owings. In 1788 the legislature of Virginia passed an act, vesting one hundred acres, part of this tract, in trustees, to be laid off in lots, some of them to be given to settlers, and others to be sold for the benefit of the proprietors. The cause depends mainly on the validity of this act. It is contended to be a violation of that part of the constitution of the United States which forbids a state to pass any law impairing the obligation of contracts.
Much reason is furnished by the record for presuming the consent of the proprietors to this law; but the circuit court has decided the question independently of this consent, and that decision is now to be reviewed.
Before we determine on the construction of the constitution in relation to a question of this description, it is necessary to inquire whether the provisions of that instrument apply to any acts of the state legislatures which were of the date with that which it is now proposed to consider.
* Only so much of this opinion is here given as bears on the constitutional question involved in the case.
This act was passed in the session of 1788. Did the constitution of the United States then operate upon it?
In September, 1787, after completing the great work in which they had been engaged, the convention resolved that the constitution should be laid before the congress of the United States, to be submitted by that body to conventions of the several states, to be convened by their respective legislatures ; and expressed the opinion, that, as soon as it should be ratified by the conventions of nine states, congress should fix a day on which electors should be appointed by the states, a day on which the electors should assemble to vote for president and vice-president, “and the time and place for commencing proceedings under this constitution.”
The conventions of nine states having adopted the constitutution, congress, in September, or October, 1788, passed a resolution in conformity with the opinions expressed by the convention, and appointed the first Wednesday in March of the ensuing year as the day, and the then seat of congress as the place, “ for commencing proceedings under the constitution."
Both governments could not be understood to exist at the same time. The new government did not commence until the old government expired. It is apparent that the government did not commence on the constitution being ratified by the ninth state; for these ratifications were to be reported to congress, whose continuing existence was recognized by the convention, and who were requested to continue to exercise their powers for the purpose of bringing the new government into operation. In fact, congress did continue to act as a government until it dissolved, on the first of November, by the successive disappearance of its members. It existed potentially until the second of March, the day preceding that on which the members of the new congress were directed to assemble.
The resolution of the convention might originally have suggested a doubt, whether the government could be in operation for every purpose before the choice of a president; but this doubt has been long solved, and were it otherwise, its discussion would be useless, since it is apparent that its operation did not commence before the first Wednesday in March, 1789, before which time Virginia had passed the act which is alleged to violate the constitution.
COHENS V. STATE OF VIRGINIA.
FEBRUARY TERM, 1821.
[6 Wheaton's Reports, 264 – 447.]
P. J. and M. J. Cohen were indicted, under an act of Virginia, for selling lottery tickets; and judgment was given against them. An appeal to the higher Virginia courts being refused, because no higher court had jurisdiction of the subject-matter, they sued out a writ of error * to the supreme court of the United States. The attorney for Virginia moved to dismiss this writ, on the ground of want of jurisdiction in the supreme court, upon which motion Chief Justice Marshall delivered the opinion of the court as follows:-+
This is a writ of error to a judgment rendered in the court of hustings for the borough of Norfolk, on an information for selling lottery tickets, contrary to an act of the legislature of Virginia. In the state court the defendant claimed the protection of an act of congress. A case was agreed between the parties, which states the act of assembly on which the prosecution was founded, and the act of congress on which the defendant relied, and concludes in these words : “If upon this case the court shall be of opinion that the acts of congress before · mentioned were valid, and, on the true construction of those acts, the lottery tickets sold by the defendants as aforesaid might lawfully be sold within the state of Virginia, notwithstanding the act or statute of the general assembly of Virginia prohibiting such sale, then judgment to be entered for the de
* This writ brings a suit from a lower into a higher court, alleging error in the opinion given by the lower tribunal.
The opinion upon the merits of this case is not given, as it touched no constitutional point.