Loughborough v. Blake. ritory west of the Missouri, is not less within the United States, than Maryland or Pennsylvania; and it is not less necessary, on the principles of our constitution, that uniformity in the imposition of imposts, duties and excises should be observed in the one, than in the other. Since, then, the power to lay and collect taxes, which includes direct taxes, is obviously co-extensive with the power to lay and collect duties, imposts and excises, and since the latter extends throughout the United States, it follows, that the power to impose direct taxes also extends throughout the United States. 66 The extent of the grant being ascertained, how far is it abridged by any part of the constitution? The 20th section of the first article declares, that representatives and direct taxes shall be apportioned among the several states which may be included *within this Union, according to their [*320 respective numbers." The object of this regulation is, we think, to furnish a standard by which taxes are to be apportioned, not to exempt from their operation any part of our country. Had the intention been, to exempt from taxation, those who were not represented in congress, that intention would have been expressed in direct terms. The power having been expressly granted, the exception would have been expressly made. But a limitation can scarcely be said to be insinuated. The words used, do not mean, that direct taxes shall be imposed on states only which are represented, or shall be apportioned to representatives; but that direct taxation, in its appication to states, shall be apportioned to numbers. Representation is not made the foundation of taxation. If, under the enumeration of a representative for every 30,000 souls, one state had been found to contain 59,000, and another 60,000, the first would have been entitled to only one representative, and the last to two. Their taxes, however, would not have been as one to two, but as fifty-nine to sixty. This clause was obviously not intended to create any exemption from taxation, or to make taxation dependent on representation, but to furnish a standard for the apportionment of each on the states. The 4th paragraph of the 9th section of the same article will next be considered. It is in these words: "No capitation, or other direct tax, shall be laid, unless in proportion to the census or enumeration herein before directed to be taken." *The census referred to is in that clause of the constitution which has just been considered, which makes num- [*321 bers the standard by which both representatives and direct taxes shall be apportioned among the states. The actual enumeration is to be made "within three years after the first meeting of the congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct." As the direct and declared object of this census is, to furnish a standard by which "representatives, and direct taxes, may be apportioned among the several states which may be included within this Union," it will be admitted, that the omission to extend it to the district or the territories, would not render it defective. The census referred to is admitted to be a census exhibiting the numbers of the respective states. It cannot, however, be admitted, that the argument which limits the application of the power of direct taxation to the population contained in this census, is a just one. The language of the clause does not imply this restriction. It is not, that "no capitation or other direct tax shall be laid, unless on those comprehended within the census herein before directed to be taken," but Loughborough v. Blake. "unless in proportion to" that census. Now, this proportion may be applied to the district or territories. If an enumeration be taken of the population in the district and territories, on the same principles on which the enumeration of the respective states is made, then the information is acquired, by which a direct tax may be imposed on the district and territories, "in proportion to the *census or enumeration" which the constitution directs *322] to be taken. The standard, then, by which direct taxes must be laid, is applicable to this district, and will enable congress to apportion on it, its just and equal share of the burden, with the same accuracy as on the respective states. If the tax be laid in this proportion, it is within the very words of the restriction. It is a tax in proportion to the census or enumeration referred to. But the argument is presented in another form, in which its refutation is more difficult. It is urged, against this construction, that it would produce the necessity of extending direct taxation to the district and territories, which would not only be inconvenient, but contrary to the understanding and practice of the whole government. If the power of imposing direct taxes be co-extensive with the United States, then, it is contended, that the restrictive clause, if applicable to the district and territories, requires that the tax should be extended to them, since to omit them would be to violate the rule of proportion. We think, a satisfactory answer to this argument may be drawn from a fair comparative view of the different clauses of the constitution which have been recited. That the general grant of power to lay and collect taxes, is made in terms which comprehend the district and territories as well as the states, is, we think, incontrovertible. The subsequent clauses are intended to regulate the exercise of this power, not to withdraw from it any portion of the com munity. The words in which those clauses are expressed, import *323] this intention. In thus regulating its exercise, a rule is given in the second section of the first article, for its application of the respective states. That rule declares how direct taxes upon the states shall be imposed. They shall be apportioned upon the several states, according to their numbers. If, then, a direct tax be laid at all, it must be laid on every state, conformable to the rule provided in the constitution. Congress has clearly no power to exempt any state from its due share of the burden. But this regulation is expressly confined to the states, and creates no necessity for extending the tax to the district or territories. The words of the 9th section do not, in terms, require, that the system of direct taxation, when resorted to, shall be extended to the territories, as the words of the 2d section require that it shall be extended to all the states. They, therefore, may, without violence, be understood to give a rule, when the territories shall be taxed, without imposing the necessity of taxing them. It could scarcely escape the members of the convention, that the expense of executing the law in a territory, might exceed the amount of the tax. But be this as it may, the doubt created by the words of the 9th section, relates to the obligation to apportion a direct tax on the territories as well as the states, rather than to the power to do so. If, then, the language of the constitution be construed to comprehend the territories and district of Columbia, as well as the states, that language confera on congress the power of taxing the district *and territories as well as the states, If the general language of the constitution *324] Loughborough v. Blake. should be confined to the states, still, the 16th paragraph of the 8th section gives to congress the power of exercising "exclusive legislation in all cases whatsoever within this district." On the extent of these terms, according to the common understanding of mankind, there can be no difference of opinion; but it is contended, that they must be limited by that great principle which was asserted in our revolution, that representation is inseparable from taxation. The difference between requiring a continent, with an immense population, to submit to be taxed by a government having no common interest with it, separated from it by a vast ocean, restrained by no principle of apportionment, and associated with it by no common feelings; and permitting the representatives of the American people, under the restrictions of our constitution, to tax a part of the society, which is either in a state of infancy, advancing to manhood, looking forward to complete equality so soon as that state of manhood shall be attained, as is the case with the territories; or which has voluntarily relinquished the right of representation, and has adopted the whole body of congress for its legitimate government, as is the case with the district, is too obvious, not to present itself to the minds of all. Although, in theory, it might be more congenial to the spirit of our institutions, to admit a representative from the district, it may be doubted, whether, in fact, its interests would be rendered thereby *the more secure; and certainly, the con- [*325 stitution does not consider their want of a representative in congress as exempting it from equal taxation. If it were true, that, according to the spirit of our constitution, the power of taxation must be limited by the right of representation, whence is derived the right to lay and collect duties, imposts and excises, within this district? If the principles of liberty, and of our constitution, forbid the raising of revenue from those who are not represented, do not these principles forbid the raising it by duties, imposts and excises, as well as by a direct tax? If the principles of our revolution give a rule applicable to this case, we cannot have forgotten, that neither the stamp act, nor the duty on tea, were direct taxes. Yet, it is admitted, that the constitution not only allows, but enjoins, the government to extend the ordinary revenue system to this district. If it be said, that the principle of uniformity, established in the constitution, secures the district from oppression in the imposition of indirect taxes, it is not less true, that the principle of 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 ir the judgment of the circuit court. Judgment affirmed. 149 *MECHANICS' BANK OF ALEXANDRIA V. BANK OF COLUMBIA. Banks.-Agency. --Evidence. The 17th section of the act, incorporating the Mechanics' Bank of Alexandria, providing" that all bills, bonds, notes and every other contract or engagement on behalf of the corporation, shall be signed by the president, and countersigned by the cashier; and the funds of the corporation shall, in no case, be liable for any contract or engagement, unless the same shall be signed and countersigned as aforesaid," does not extend to contracts and undertakings implied in law. Where a check was drawn by a person who was the cashier of an incorporated bank, and it appeared doubtful, upon the face of the instrument, whether it was an official or a private act, parol evidence was admitted, to show that it was an official act. The act of agents do not derive their validity from professing on the face of them to have been done in the exercise of their agency. The liability of the principal depends upon the facts, 1st. That the act was done in the exercise, and 2d. Within the limits of the power delegated.1 In ascertaining these facts, as connected with the execution of any written instrument, parol testimony is admissible." ERROR to the Circuit Court for the district of Columbia. This was an action of assumpsit, brought by the defendants in error, against the plaintiffs in error, on the following check: *327] Mechanics' Bank of Alexandria. No. 18. MECHANICS' BANK OF ALEXANDRIA. Cashier of the Bank of Columbia, $10,000 Pay to the order of P. H. Minor, Esq., Ten thousand Dollars. This check was offered in evidence by the plaintiff below, and testimony to prove that the said Paton, before, at the time, and subsequent to the drawing of the said check, was cashier of the said Mechanics' Bank, and the said Minor, the teller thereof; and in order to prove that the said check was drawn by the said William Paton, in his capacity as cashier, and was so understood by him, and so understood by the said Bank of Columbia, their officers and servants; evidence was further offered to prove, that from the 5th of May 1817, to the time of drawing the said check, there was kept in the said Mechanics' Bank, by the proper officer thereof, a book of printed checks, in blank, for the purpose of being used by the cashier, in drawing his official checks; and that the check in question had been cut out of the said book that the said cashier, in his official character, had frequently used the blank checks out of the said book, in drawing upon other banks in the district, and there was no other difference between the checks so drawn, and the check in question, other than the letters "Cas." or "Ca." being 1 Barger v. Miller, 4 W. C. C. 280; Holbrook v. Turnpike Co., 3 Cr. C. C. 425; United States v. Halberstadt, Gilp. 262. 2 Baldwin v. Bank of Newbury, 1 Wall. 234. Mechanics' Bank v. Bank of Columbia. superadded to the name of the said William Paton, Jun., in the checks *so drawn upon the said other banks: that although the said check [*328 book was intended for the use of the bank, the checks in the same were sometimes used for other purposes. That the business of the sad banks was sometimes managed through the medium of letters; and in such official correspondence, it was usual to subscribe the names of the cashiers, with the addition of some letters denoting their capacity of cashier; but such form was sometimes omitted, and was, in no case, deemed indispensable, when, from other circumstances, such correspondence appeared to be official. The plaintiffs further offered in evidence, two letters of the said William Paton, directed to William Whann, cashier of the Bank of Columbia, each signed with the proper name of the said William Paton, without the addition of cashier, or the letters "Cas." or "Ca.," one of which letters related to the private concerns of the said William Whann, and the other to the concerns of the bank. Evidence was further offered, to prove, that the check given in evidence as aforesaid, was (together with a number of other checks, drawn by the said William Paton upon other banks, with the addition in his signature of the letters "Ca." and "Cas.," and cut out of the official check-book) sent by the said Paton, on the 12th of July 1817, by the hands of the said Philip H. Minor, then being teller as aforesaid, to Richard Smith, cashier of the office of discount and deposit of the Bank of the United States, at Washington, to be paid in liquidation of a balance due from the said Mechanics' Bank to the said office of discount and deposit: that the said letter was *deliv[*329 ered by the said Minor, to the said Smith, and the checks and moneys contained in the same were applied to the credit of the said Mechanics' Bank. That among the checks so sent, was one for $17,626.05, written upon, and cut out of the check-book aforesaid, and in the words and figures following, to wit: No. 32. Mechanics' Bank of Alexandria, July 12, 1817. Cashier of the Branch Bank of the United States, Washington: Pay to the order of Philip H. Minor, amount of discount made me, which I believe is seventeen thousand six hundred and twenty-six dollars and five cents. WM. PATON, Jun. That the said Richard Smith, about the 17th of July 1817, did cause the same to be presented to the Bank of Columbia for payment, and the same was accordingly paid, and was thereupon immediatedly charged to the said Mechanics' Bank. Evidence was further offered, to prove, that the said Richard Smith considered the said check as the official check of the said William Paton, and it was so paid by him; and that the cashier of the Bank of Columbia also considered it as the official check of the said Paton, and it was so paid by him. Evidence was further offered, on the part of the Mechanics' Bank, to prove, that the said William Paton, at the time he drew the said check, declared it was his private individual check; that he had *funds in the Bank of Columbia to meet it, and that it was passed by him to [*330 the said Mechanics' Bank, as the individual check of the said William Paton. |