90

In Hilton v. Merritt the constitutionality of these provisions was upheld. In Auffmordt v. Hedden the court say: "Nor is there anything in the objection that Section 2930 of the Revised Statutes is unconstitutional in making the decision of the appraisers final, and that the plaintiffs had a right to have the question of the dutiable value of the goods passed upon by a jury. As said before, the government has the right to prescribe the conditions attending the importation of goods upon which it will permit the collector to be sued. One of those conditions is that the appraisal shall be regarded as final; and it has been held by this court, in Arnson v. Murphy (109 U. S. 238; 3 Sup. Ct. Rep. 184; 27 L. ed. 920), that the right to bring such a suit is exclusively statutory, and is substituted for any and every common-law right. The action is, to all intents and purposes, with the provision for refunding the money if the importer is successful in the suit, an action against the government for moneys in the treasury. The provision as to the finality of the appraisement is virtually a rule of evidence to be observed in the trial of the suit brought against the collector."

In this case it was held that it was not necessary, and that it had not been the intention of Congress that the hearing before. the appraisers or collector should be characterized by all the formalities of a court of law, but that the proceedings might, and from necessity would generally have to be of a summary character. The court thus held that due process of law had not been denied because the importer or his agent had been practically excluded from the hearing upon the reappraisement, that he had not been permitted to confront the opposing witnesses by testimony on his own behalf, or allowed the aid of counsel. "No government," said the court, "would collect the revenues or perform its necessary functions, if the system contended for by the plaintiffs were to prevail."

89 110 U. S. 97; 3 Sup. Ct. Rep. 548; 28 L. ed. 83.

50 137 U. S. 310; 11 Sup. Ct. Rep. 103; 34 L. ed. 674.

§ 284. Summary Modes of Collection.

For the collection of taxes, as well as in the appraisement of property for taxation, summary modes of procedure may be had, the justification being that without such means no government could maintain itself.91

91 The leading case is Murray's Lessee v. Hoboken Land Improvement Co., 18 How. 272; 15 L. ed. 372. In this case the account of a collector of customs having been audited by the First Auditor of the Treasury Department, and certified by the First Comptroller, a distress warrant for the balance found due the United States was issued by the Solicitor of the Treasury in accordance with the provisions of an act of Congress, and levied upon the lands of the collector. To the contention that this proceeding denied to the collector due process of law the court replied: "Tested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the States at the time of the adoption of this amendment, the proceedings authorized by the act of 1820 cannot be denied to be duo process of law, when applied to the ascertainment and recovery of balances due to the government from a collector of customs, unless there exists in the Constitution some other provision which restrains Congress from authorizing such proceedings. For, though 'due process of law' generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings (2 Inst. 47, 50; Hoke v. Henderson, 4 Dev. N. C. 15; Taylor v. Porter, 4 Hill, 146; Van Zandt v. Waddel, 2 Yerg. 260; Bank v. Cooper, Id. 599; Jones' Heirs v. Perry, 10 Yerg, 59; Greene v. Briggs, 1 Curt. 311), yet this is not universally true. There may be, and we have seen that there are, cases, under the law of England after Magna Charta, and as it was brought to this country and acted on here, in which process, in its nature final, issues against the body, lands, and goods of certain public debtors without any such trial; and this brings us to the question whether those provisions of the Constitution which relate to the judicial power are incompatible with these proceedings.

The power to collect and disburse revenue, and to make all laws which shall be necessary and proper for carrying that power into effect, includes all known and appropriate means of effectually collecting and disbursing that revenue, unless some such means should be forbidden in some other part of the Constitution. The power has not been exhausted by the receipt of the money by the collector. Its purpose is to raise money, and use it in payment of the debts of the government; and, whoever may have possession of the publie money until it is actually disbursed, the power to use those known and appropriate means to secure its due application continues. As we have already shown, the means provided by the act of 1820 do not differ in principle from those employed in England from remote antiquity — and in many of the States, so far as we know, without objection- for this purpose, at the time the Constitution was formed. It may be added that probably there are few governments which do or can permit their claims for public

§ 285. Notice.

Due process of law in matters of taxation does not require the same kind of notice as is required in a suit of law, or in proceedings for taking private property under the power of eminent domain. No violation of due process of law is committed when a tax is collected according to customary forms and established usages, or in subordination to the principles which underlie them. "This must be so," the court say in King v. Mullins, "else the existence of government might be put in peril by the delays attendant upon formal judicial proceedings for the collection of taxes."

In most of the States it is provided by statute that the assessment or collection of taxes shall not be restrained by a judicial writ; and, since 1867, by act of Congress it has been provided that "no suit for the purpose of restraining the assessment or collection of taxes shall be maintained in any court.'

95

94

The constitutionality of this provision has been sustained whenever questioned, administrative necessity furnishing the justification. In Cheatham v. United States the court say: "If there existed in the courts, state or national, any general power of impeding or controlling the collection of taxes or relieving the hardship incident to taxation, the very existence of the Government might be placed in the power of a hostile judiciary." And in the Railroad Tax Cases96 the court say: "The Government of the United States has provided, both in the customs and in the taxes, either on the citizen or the officer employed for their collection or disbursement, to become subjects of judicial controversy, according to the course of the law of the land. Imperative necessity has forced a distinction between such claims and all others, which has sometimes been carried out by summary methods of proceeding, and sometimes by systems of fines and penalties, but always in some way observed and yielded to."

92 171 U. S. 404; 18 Sup. Ct. Rep. 925; 43 L. ed. 214.

93 Cf. Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232; 10 Sup. Ct. Rep. 53à; 33 L. ed. 892; Turpin v. Lemon, 187 U. S. 51; 23 Sup. Ct. Rep. 20; 47 L. ed. 70; Londoner v. Denver, 210 U. S. 373; 28 Sup. Ct. Rep. 708; 52 L. ed. 1103; Judson, On Taxation, Chapter 8, and McGehee, Due Process of Law, pp. 235ff.

94 Rev. Stat., § 3224. This provision of course applies only to the federal courts, and by the courts has been construed to relate only to federal taxes. In 1909 a bill was introduced into Congress to amend this section so as to make it apply to state, county, municipal and district taxes as well.

95 92 U. S. 85; 23 L. ed. 561.

96 92 U. S. 575; 23 L. ed. 663.

internal revenue, a complete system of corrective justice in regard to taxes imposed by the General Government, which in both branches is founded upon the idea of appeals within the executive departments. If the party aggrieved does not obtain satisfaction in this mode, there are provisions for recovering the tax after it has been paid by suit against the collecting officer. But there is no place in this system for an application to a court of justice until after the money is paid. That there might be no misunderstanding of the universality of this principle, it was expressly enacted, in 1867, that no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.' (Rev. Stat., § 3224.) And though this was intended to apply alone to taxes levied by the United States, it shows the sense of Congress of the evils to be feared if courts of justice could, in any case, interfere with the process of collecting the taxes on which the Government depends for its continued existence. It is a wise policy. It is founded on the simple philosophy derived from the experience of ages that the payment of taxes has to be enforced by summary and stringent means against a reluctant and often adverse sentiment; and to do this successfully, other instrumentalitics and other modes of procedure are necessary than those which belong to a court of justice."

§ 286. Borrowing Power of the United States: Legal Tender. The Federal Government is given power "to borrow money on the credit of the United States."

The power thus given is free from limitations. In the draft of the Constitution reported by the Committee on Detail to the Constitutional Convention, the draft read, "To borrow money and emit bills on the credit of the United States." The express authorization to emit bills of credit was stricken out by the Convention, but, apparently, not with the intention of thereby depriving the United States of the power, but that the power would be included in the general authority to borrow money. That this is so, has not been questioned by the courts. There has, however, been serious controversy as to the power of the United States to give a legal tender character to these bills when issued.

The debates in the Constitutional Convention, and other pro

99

visions of the Constitution,97 would seem to indicate an intention. upon the part of the framers of the Constitution that a legal tender character might be given by Congress only to the metallic money, coined by the United States, and the Supreme Court in Hepburn v. Griswolds so held as regards the payment of debts between private parties created before the enactment of the law. In Knox v. Lee, however, four justices dissenting, this doctrine was overthrown, and the issuance of legal tender notes authorized as a legitimate war power. And finally, in the Legal Tender Cases Juillard v. Greenman' the authority in question was conceded to exist as implied in the general power to borrow money, whether in times of peace or of war, the court saying: "Such being our conclusion in matter of law, the question whether at any particu lar time, in war or in peace, the exigency is such, by reason of unusual and pressing demands on the resources of the government, or of the inadequacy of the supply of gold and silver coin to furnish the currency needed for the uses of the government and of the people, that it is, as a matter of fact, wise and expedient to resort to this means, is a political question, to be determine by Congress when the question of exigency arises, and not a judicial question, to be afterwards passed upon by the courts."

In Knox v. Lee it is to be observed that the legal tender power is deduced not wholly from the power to borrow money but from the ensemble of powers which are granted to the United States, which aggregate of powers, the court holds, evidences the intention to equip the Central Government with all the powers necessary for its maintenance as an effective sovereign State. The doctrine thus comes perilously near to an acceptance of the doctrine of "inherent sovereign powers." 2 Also the court declare that it is not indispensable to the existence of any power claimed for the Federal Government that it should be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers, but that its existence may be deduced from a combination of several expressly granted powers.

97 Cf. Tucker's argument, The Constitution of the United States, I, 508ff. 98 8 Wall. 603; 19 L. ed. 513.

99 12 Wall. 457; 20 L. ed. 287.

1110 U. S. 421; 4 Sup. Ct. Rep. 122: 28 L. ed. 204.

2 See Chapter III of this treatise.