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improvements, education, etc. has not been supposed to apply to an appropriation of the proceeds of the public land. The cessions of that territory were expressly made for the common, benefit of the United States, and therefore constitute a fund which may be expressly devoted to any objects which are for the common benefit of the Union."
The sugar bounty provision of the McKinley Act was also vigorously fought in Congress as unconstitutional and as an entirely new departure in Federal legislation. When it became a law the whole act was attacked in the courts on the ground that the unconstitutionality of the bounty provision vitiated the entire act (Field v. Clark, 143 U. S., 649), where, however, it was held that the bounty provision was separable from the tariff portion of the act, and the constitutionality of the bounty provision was not decided. When the first case directly based upon the bounty clause reached the courts it was held to be unconstitutional. When it is seen that no act granting a bounty in aid of industries has ever been passed without being severely criticised by members of the legislative body as inconstitutional, and when the only act passed in early days which can by any possibility be claimed to be a money. bounty act was only justified by those who were then members of Congress as a drawback and an encouragement to the formation of a naval militia, it can not be said that such a practical legislative construction of the Constitution has been made as will require or justify the courts in holding bounties constitutional. On the contrary, the absence of all such legislation is, under the circumstances, rather a practical construction that bounties are unconstitutional.
A practical construction of the Constitution by Congress has only been treated by the courts as making the true construction in cases where the proper construction was not clear and the construction by Congress had been early adopted and uniformly adhered to. (The Laura, 114 U. S., 411; Field v. Clark, 143 U. S., 649–691; McPherson v. Blacker, 146 U. S., 1.) In the recent income tax cases counsel for the Government pressed upon the court without effect the legislative practice during and since the war.
Nor can such a construction fairly be interred from the other acts cited to sustain this proposition. Most of these acts may be classed under the general designation of “charities.” Be. fore 1863, or for three-quarters of a century after the formation of the Constitution, but three of such acts appropriating money
have been found. They are the act of February 12, 1794, 6. For the relief of the inhabitants of San Domingo, resident within the United States, as may be found in want of support" 16 Stat., 13); the act of May 8, 1812, “For the relief of the citizens of Venezuela” (2 Stat., 730), and the act of January 24, 1827, “For the relief of indigent sufferers by the fire at Alexandria” (6 Stat., 356). Of these acts it may be said that that for the relief of the Alexandria fire sufferers was one passed while Alexandria was a part of the District of Columbia, and therefore directly within the jurisdiction of Congress, while the other two acts seem to have had some direct connection with our diplomatic relations, a subject solely cognizable by the Federal Government.
In the act of 1794 for the relief of the San Domingo sufferers it was provided that the amount of the relief should be provi. sionally charged to the debit of the French Republic, subject to such future arrangements as shall be made thereon between the Government of the United States and the said Republic,” with a further proviso that unless such arrangement were made within six months the relief should cease; while in the act of May 8, 1812, the relief was tendered “in the name of the Government of the United States to that of Venezuela." But on the subject of these two acts, as well as all the acts of charity passed since 1863, the remark made by Mr. Cambreleng, when the act for the relief of the Alexandria sufferers was being debated, may be quoted : “ This was not the time nor the occasion to fight the battles of the Constitution. * God grant that it may never be surrendered to an enemy more formidable and dangerous than charity.”
Of all these so-called bounty and charity acts Judge Shepard said :
"All such acts, however, however worded or devised, have met with determined opposition and denial of power at all times, and it can not be said that they have ever received general consent or acquiescence. The fact that moneys have often been paid out under acts of doubtful or questionable validity can have no great weight under a system where the question, by reason of difficulties before alluded to, is so hard to be raised in an effective manner.
“But if there had been a practice by Congress, uniform and generally acquiesced in, our opinion is so clearly against the validity of this act that we could not be controlled by it in the performance of our duty. No time, vo acquiescence, no estoppel runs against the people under the protection of our written Constitution."
In which conclusion the Comptroller concurs.
It was furthermore suggested rather than argued that these bounties, being given to stimulate agriculture, whereby production, and as a result commerce, would be increased, might be sustained under the power “ to regulate commerce with foreign nations and among the several States and with the Indian tribes." (Const., par. 3, sec. 8, art. 1.) That contention seems to be conclusively settled by the opinions of the Supreme Court in Veazie v. Moore (14 How., 568); Kidd v. Pearson (128 U. S., 1), and United States v. E. C. Knight Company (156 U.S., 1), wherein it was distinctly held that agriculture and manufacture were not commerce and could not be regulated as an incident to the power to regulate commerce.
These cases seem also to dispose of the suggestion that the reciprocity feature of the McKinley Act might sustain the bounties; besides, the tariff and recipi ocity features of the McKinley Act are independent of the bounty provision, as specifically held in Field v. Clark, supra.
It is contended, however, that the power to appropriate is absolute in Congress; that it is a political power not cognizable by the courts, and that the correction lies with the people at the polls if its use exceeds constitutional limits. No authorities are advanced to sustain this proposition. The power to appropriate is coextensive with the power to lay taxes. The appropriation is the means by which the purpose for which the tax is levied is carried out. Unless, therefore, there is the power to tax, there can not be the power to appro. priate. Whether a tax is laid for a public purpose may be inquired into by the courts, as shown by the cases already cited. In Allen v. The Inhabitants of Jay (60 Me., 124), the question was elaborately discussed and the conclusiveness of the legislative decision denied.
These various arguments were considered in the opinion of the Court of Appeals of the District of Columbia in the Miles Case as not justifying the sugar bounty of the McKinley Act as a constitutional exercise of the taxing power. It is sought to discredit that opinion on the ground that it is not a decision upon the merits of a question actually before the court neces. sary for determination, and therefore is a mere dictum; and also that that court is not a constitutional court of the United States, its opinion being of no more force than that of any inferior State court or Territorial court of the United States. The constitutional point, if not absolutely involved, was in
fact raised and discussed by counsel because it could not be known that the court would decide the case on other points. Even if it be a dictum it is entitled to the highest weight as the opinion of the judges who concurred in the same after argument and due consideration. As to the character of that court it need only be said that it is an appellate court, created by Congress, whose opinions are entitled to as much weight as the opinions of the circuit courts of appeals of the United States. If the Comptroller is ever justified in following the opinion of an inferior Federal court, which is founded upon the application of cases decided by the Supreme Court of the United States and the reasoning of which is convincing to his own mind, certainly the Comptroller is justified in following this opinion of Judge Shepard, concurred in by Judge Morris and not dissented' from by Chief Justice Alvey, the other judge who sat in the case.
But it is claimed that the case of Calder v. Henderson (54 Fed. Rep., 802), is a dictum contrary to that in the Miles Case. The Calder Case was one between private individuals, and the constitutionality of the bounty was not drawn in question or argued, and the opinion does not even refer to it. Even if that opinion be a dictum, holding the bounty constitutional, and be entitled to as much weight as the so-called dictum of Judge Shepard, there would then be two dicta, the one offsetting the other, by courts of equal standing. Under such circumstances a private individual would unquestionably wait for a final decision by the court of last resort before irrevocably paying out his money. It would seem that the Government, as the agent of the people and the custodian of their funds, should do no less.
3. If the present claim were founded upon the provisions of the bounty clause of the McKinley Act, upon which the opinion in the Miles Case was given, it would not be necessary to say anything more upon the subject; but it is founded upon an appropriation made in the act of March 2, 1895; and it is claimed that, even if the original bounty provisions of the McKinley Act are unconstitutional, the appropriation now under consideration may be sustained upon the ground that Congress has the power to make appropriations founded on a moral obligation, and that such considerations exist for the payment of the claims covered by the appropriation in the act of 1895.
This contention is largely based upon the statement of Judge Cooley in his work on Taxation, on page 91, and the numerous cases cited in the notes thereto, and other cases of siunilar purport, that taxes may be levied to pay equitable claims. It is not to be denied that Congress has the power to make many appropriations based exclusively upon equitable considerations and for claims which are not legal obligations of the Government, and much legislation of that character has been passed.
An examination of all the authorities cited shows that the power has been sustained only in cases which were within the constitutional limits of the legislative power, and generally to pay equitable claims which would have been legal demands but for the failure to comply with some formality of law, or claims founded upon services voluntarily rendered or money voluntarily loaned, in cases where the legislature might have originally provided for the employment of the services or the borrowing of the money.
No single case has been presented in which it was held, or even suggested, that, if a matter had been originally beyond the power of the legislative body because in violation of the Constitution, the legislature by a subsequent act could have made it valid.
The contention that a moral obligation existed, authorizing Congress to make the present bounty appropriation, rests upon the alleged fact that by the sudden repeal of the bounty provision of the McKinley Act an injury was done to the sugar producers, who believed they would receive the benefits of that bounty, if not for the full period of time therein named, at least for all that had been earned under its provisions prior to its repeal, and for the crop which, at the time of the repeal, was actually grown, but not yet manufactured. But it must not be overlooked that if the McKinley bounty was únconstitutional a wrong was done to the people whose money was paid out of the Treasury without their authority.
The theory which rests at the basis of this moral obligation is the repeal of a constitutional act. If the original act was pull and void because unconstitutional, the cessation of pay. ments thereunder because of its repeal would be no different from the cessation of payments because the act had been held uuconstitutional by the Supreme Court. If the court should have held the act unconstitutional upon the same day that it