§ 164. “Taxation.”

NATURE OF THE TAXING POWER.—The origin of modern taxation may be traced to the feudal aids, burdens and services originally exacted by the Crown from its tenants-in-chief. After property in land underwent subdivision, and new kinds of property sprang into existence, taxation became less feudal in its character, and the ancient aids, burdens and services were commuted into money grants and subsidies freely and voluntarily voted by Parliament representing the taxpayers. (May, 10th ed. p. 553.) Taxation may be now defined as any exaction of money or revenue, by the authority of a State, from its subjects or citizens and others within its jurisdiction, for the purpose of defraying the cost of government, promoting the common welfare, and defending it against aggression from without. Taxation may assume various shapes, and be known by different names; thus, taxes on land, its capital or annual value=a land tax; taxes on fixtures annexed to land=a hearth tax, a house tax; taxes on goods, chattels, and commodities generally=duties of customs and duties of excise, imposts; taxes on the transfer of property=registration fees and succession duties; taxes on passing over roads or along rivers=tolls; taxes on individuals=a poll tax, capitation tax; taxes on the produce of property generally, as well as on the earnings of labour=income tax; taxes on certain trades and occupations=license fees.

The term taxation covers every conceivable exaction which it is possible for a government to make, whether under the name of a tax, or under such names as rates, assessments, duties, imposts, excise, licenses, fees, tolls, &c. (Hylton v. United States, 3 Dall. 171; United States v. Tappan, 11 Wheat. 419.)

LIMITS OF THE TAXING POWER.—From the foregoing definition it appears that the taxing power of the Federal Parliament is very wide and comprehensive, and that it is capable of operating against every individual and on every conceivable form of realizable property. At the same time there are certain limitations, qualifications and restraints to be found in or inferred from several sections of the Constitution, which may be here grouped in the sequence in which they occur, for the purpose of showing how the general grant of taxing power is cut down.

DISCRIMINATIONS.—The Federal Parliament may not impose a tax which discriminates between States or parts of States (s. 51—ii.) This is a limitation which has been provided for federal reasons, viz., for the protection of States which might not possess sufficient strength in the Federal Parliament to resist the imposition of a system of taxation designed to press more heavily on people or property in some States than on people or property in other States. To discriminate obviously means to make differences in the nature, burden, incidence and enforcement of taxing law; to impose a high tax on commodities or persons in one State and a low tax on the same class of commodities or persons in another State, would be to discriminate. Such discriminations are forbidden, and uniformity of taxation throughout the Commonwealth is an essential condition of the validity of every taxing scheme. Any deviation from this rule would invalidate a tax. The provision against discrimination is practically the same in substance as the requirement of Art. 1, s. 8, sub-s. 1, of the United States Constitution that “all duties, imposts and excises shall be uniform throughout the United States.' It has been held in that country that “uniform” means at the same rate on the same article wherever found. (Head Money Cases, 112 U.S. 580; Burgess, Pol. Sci. ii. 151.)

MODE OF EXERCISING THE TAXING POWER.—Next, there is an important regulation or qualification of the mode in which the taxing power is to be exercised by the Parliament. Laws imposing taxation must deal only with the imposition of taxation; any provision in a tax-raising law, dealing with matter foreign to the tax, is declared to be a nullity, of no effect (sec. 55). Kindred to this is the mandate that laws imposing taxation must deal with one subject of taxation only. To this there is an exception in the case of customs duties and excise duties. A law imposing customs duties may include any number of items of taxation, and a law imposing excise duties may deal with

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any number of items of taxation. It would be very inconvenient, and almost unworkable, to require a separate Act for every item in the tariff. With respect to other taxes the rule is that each tax must be passed by a separate law.

RESTRAINT ON THE TAXING POWER.—Whilst the Federal Parliament has general power to legislate with respect to trade and commerce, and to lay and collect taxes on trade and commerce, throughout the Commonwealth, there are two fundamental prohibitions: It cannot impose a tax on any property belonging to a State (sec. 114); and, it cannot tax inter-state trade and commerce—that is, trade and commerce flowing from one State into another (sec. 92). The Federal Parliament may impose excise duties on the production of commodities throughout the Commonwealth, and those excise duties may be collected on the taxable articles wherever and whenever they are found, but it may not impose a tax on the carriage or transport of those articles or of any commodities from one State into another. Nor may it tax the commercial instrumentalities, used in connection with inter-state business. This is conclusively established by sec. 92, which declares that, on the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, “shall be absolutely free.” Cases illustrating the principle of equality and uniformity of taxation required by the Constitution of the United States of America will be found in Cooley's Cons. Lim. 6th ed. pp. 608-18.

PREFERENCES.—Another restraint on the taxing power of the Federal Parliament is contained in sec. 99, which provides that “The Commonwealth shall not, by any law or regulation of trade, commerce or revenue, give preference to one State, or any part thereof, over another State or any part thereof.” Without this prohibition a Federal revenue law or a Federal commercial law might be made so favourable in its incidence, and so mild and ineffective in its enforcement, in one State, as to have the effect of drawing trade and commerce from another State to that State. Such a preference would, under this section, be as unlawful as a discrimination under s. 51—ii.

STATE PROPERTY AND OFFICERS.—The Commonwealth is by section 114 prevented from imposing a tax on property of any kind belonging to a State. It may be argued, by necessary implication, that the Federal Parliament could not levy a tax on the salaries of officers of a State Government, because it would thereby conflict with the laws of a State made in pursuance of the powers reserved to it by the Constitution. (Buffington v. Day, 11 Wall. 113; Dobbins v. Erie County, 16 Pet. 435.)

AREA OF FEDERAL TAXATION.—The power of the Federal Parliament to lay and collect taxes is co-extensive with the limits of the Commonwealth. It has therefore power to impose and enforce taxation within the Territories as well as within the States. The taxing power of the Federal Parliament is exclusive within Federal territory forming no part of a State. (Loughborough v. Blake, 5 Wheat. 317.)

TAXING POWER NTO EXCLUSIVE.—The power of taxation vested in the Federal Parliament is not exclusive, except to the extent and in respect of matters as to which it is declared exclusive by the Constitution, or is so by necessary implication. The only taxes which by express words are exclusively vested in the Federal Parliament are duties of customs and excise (sec. 90). Upon the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and excise becomes exclusive. With respect to other subjects of taxation the States possess the concurrent power of levying taxes, within their jurisdiction, subject to the restrictions, (1) that they cannot tax public property of any kind belonging to the Commonwealth (s. 114); (2) that by necessary implication they cannot tax any of the constitutional means or instruments employed by the Commonwealth (McCulloch v. Maryland, 4 Wheat. 316); (3) that they cannot tax the compensation or official income of officers of the Commonwealth. (Dobbins v. Erie County, 16 Pet. 435; Leprohon v. City of Ottowa, 1878, 2 Ontario App. Rep. 522; Wheeler, C.C. p. 70.

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POWER OF STATES TO TAX CORPORATIONS.—Important questions may hereafter be raised as to the power of States to tax banks, insurance companies, and other corporations established under the provisions of Federal law. Several leading American and Canadian cases may be here cited and compared, with the prefatory observation that the American cases will be found more applicable to the Constitution of the Commonwealth than some of the latest Canadian decisions. The first important case on this branch of Federal law was that of McCulloch v. Maryland, 4 Wheat. 316, in which it was held that a law of the State of Maryland imposing a tax upon notes issued by a branch of the Bank of the United States, chartered by Federal law and established in that State, was unconstitutional. It was held to be a tax on the operations of the bank, and therefore a tax on a means or instrumentality employed by the Government of the Union in pursuance of the Constitution. It was said that the power to tax implied the power to impair, and possibly to destroy, an institution established by Federal authority. As such it was an abuse and a usurpation of power which the people of a single State could not give or exercise through its legislature. But it was carefully stated that the decision applied only to a tax on the operations of the bank, not to a tax on its property. “This opinion does not deprive the States of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the State, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the State. But this is a tax on the operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the Government of the Union to carry its powers into execution. Such a tax must be unconstitutional.” (Per Marshall, C.J., McCulloch v. Maryland, 4 Wheat. p. 436. See Union Pacific R. Co. v. Peniston, 18 Wall. 5.) Referring to the decision in McCulloch v. Maryland, William Pinckney is reported to have said that in it he saw “a pledge of the immortality of the Union;” whilst Kent declares that “a case could not be selected, from the decisions of the Supreme Court of the United States, superior to this one of McCulloch v. The State of Maryland for the clear and satisfactory manner in which the supremacy of the laws of the Union have been maintained by the Court, and an undue assertion of State power overruled and defeated.” (Kent, Comm. I. 427.)

This principle was afterwards followed and affirmed in other cases. In Osborn v. The Bank of the United States, 9 Wheat. 738, the Court adhered to its prior decision, ruling that a State could not tax the franchise of the Bank of the United States. In Dobbins v. Erie County, 16 Pet. 435, it was ruled that the compensation of an officer of the United States is fixed by the laws thereof, and a State law seeking to tax such compensation is unconstitutional, because it conflicts with the law of Congress made in pursuance of the powers conferred by the Constitution. The rule of exemption of Federal agencies and instrumentalities from State taxation was, in a modified form, applied in the case of California v. Central Pacific R. Co., 127 U.S. 1, in which it was decided that a law of California, by which the franchise or business conferred by Act of Congress upon a railroad corporation was taxed, was repugnant to the law and Constitution of the United States; that franchises conferred by Congress cannot be taxed by States without the consent of Congress.

An attempt was unsuccessfully made to extend the exemption to other cases. In Thomson v. Union Pacific R. Co., 9 Wall. 579, it was held that a railroad constructed under the direction and by authority of Congress, for the postal and military purposes of the United States, but the stock of which was owned by private parties, was not exempt from taxation by the States through which it ran, in the absence of any legislation by Congress declaring such exemption. In the Union Pacific R. Co. v. Peniston, 18 Wall. 5, the doctrine of exemption was not applied to the case of a State tax upon the real and personal estate of the Union Pacific R. Co., a corporation chartered by Congress and the whole of whose stock was owned by individuals, but which Congress assisted by donations and loans, over which it reserved and exercised special rights, and which, among other

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things, was bound at all times to transmit despatches and transport mails and munitions of war for the government whenever required. The Court expressly distinguished this case from McCulloch v. Maryland, supra, on the ground that the tax here involved was not a tax upon the operations of the company, but only a tax upon the property of the company, which did not interfere with the efficiency of the governmental agency.

Decisions similar in principle to that of McCulloch v. Maryland have been given in Canada, under the Constitution of the Dominion, notwithstanding the fact that it differs from that of the United States in assigning one area of legislative power exclusively to Federal authority, and another area exclusively to the Provinces. In Leprohon v. City of Ottawa (1877-8), 40 Upper Canada Rep. 478, the Ontario Court of Appeal gave a decision somewhat similar to that of Dobbins v. Erie Company, overruling the judgment of a majority of the Court of Queen's Bench, and confirming the judgment of Moss, J., at the trial, holding unanimously that a provincial legislature cannot impose a tax upon the official income of an officer of the Dominion government. All the judges who supported the view of the Court of Appeal based their reasoning upon the principle affirmed in McCulloch v. Maryland. This case was followed in 1881 in exparte Owen, 20 N. Bruns. (4 Pugs. and Burb.) p. 487, in which the Supreme Court of New Brunswick held that the income of a Federal officer in the Customs, who resided in the city of St. Johns, was not subject to provincial taxation. In Cotè v. Watson, 1877, 3 Quebec L.R. 157, it was held that the Quebec License Act, 1870, was ultra vires, in so far as it sought to impose a tax on the proceeds of sale of an insolvent's effects, when made under the Dominion Insolvent Act of 1869, 32 and 33 Vic. c. 16 (the said tax being in the form of a penalty recoverable against the Dominion assignee in insolvency for selling the goods of the insolvent by auction without a license). In Evans v. Hudon, 1877, 22 Lower Can. Jur. 268, it was decided that a provincial legislature has no power to declare liable to seizure the salaries of employees of the Federal Government. In 1884 it was held, in the case of Ackman v. Town of Moncton, 24 New Bruns. 103, that the provincial legislature could not empower a municipality to levy a tax on the salary of an employee of the Intercolonial railway, received by him from the Dominion government. In Regina v. Bowell (1896) 4 Brit. Columb. 498, Drake, J., held that the imposition of a poll tax upon an officer of the Dominion government—viz., a collector of customs for the port of Vancouver—was ultra vires. In Hillimore v. Colbourne, 1896, 32 Can. L.J. (N.S.) 201, the case of Leprohon v. City of Ottawa was distinguished by the Supreme Court of Nova Scotia. (Lefroy, Legislative Power in Canada, p. 677.)

The soundness of some of these decisions under the Canadian Constitution seems, according to the opinion of Mr. Lefroy (Legisl. Power in Canada, p. 677) to have been shaken by the judgment of the Privy Council in the appeal case of the Bank of Toronto v. Lambe, 12 App. Cas. 575, upholding the validity of an Act passed by the Quebec legislature, whereby a direct tax was imposed on the paid-up capital of every bank doing business in the Province. Against the tax it was argued that the provincial legislature might lay on taxes so heavy as to crush a bank out of existence, and so nullify the power of the Dominion Parliament to erect banks. The principle of McCulloch v. Maryland was relied on in support of the argument against the tax. In reviewing the authorities Lord Hobhouse said:—

“Their lordships have been invited to take a very wide range on this part of the case, and to apply to the construction of the Federation Act the principles laid down for the United States by Chief Justice Marshall. Every one would gladly accept the guidance of that great judge in a parallel case. But he was dealing with the Constitution of the United States. Under that constitution, as their lordships understand, each State may make laws for itself, uncontrolled by the federal power, and subject only to the limits placed by law on the range of subjects within its jurisdiction. In such a constitution, Chief Justice Marshall found one of those limits at the point at which the action of the State legislature came into conflict with the power vested in Congress. The appellant invokes that principle to support the conclusion that the Federation Act must be so construed as to allow no power to the provincial legislatures under section 92, which may by possibility, and if exercised in some extravagant way, interfere with

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the objects of the Dominion in exercising their powers under section 91. It is quite impossible to argue from the one case to the other. Their lordships have to construe the express words of an Act of Parliament which makes an elaborate distribution of the whole field of legislative authority between two legislative bodies, and at the same time provides for the federated Provinces a carefully balanced constitution, under which no one of the parts can pass laws for itself except under the control of the whole acting through the Governor-General. And the question they have to answer is whether the one body or the other has power to make a given law. If they find that on the due construction of the Act a legislative power falls within section 92, it would be quite wrong of them to deny its existence because by some possibility it may be abused, or may limit the range which otherwise would be open to the Dominion Parliament.' (12 App. Cas. 587.)

In the same direction was the decision of Weatherbe, J., in the Town of Windsor v. Commercial Bank of Windsor, 3 R. and G. (Nov. Scot.) 420, to the effect that “all property, except that of the Dominion or the Provinces, may be made equally liable to assessment for municipal purposes by provincial legislation.” In the case of a bank doing business in Windsor under the General Banking Act of the Dominion of Canada, which held, in addition to real and other personal property, notes of the Dominion of Canada, as a portion of its cash reserve required by the Dominion Act, it was decided that the assessors for the town of Windsor were right in assessing on the Dominion notes, they not being the property of the Dominion. It must be noticed that the decision of the Privy Council in the Bank of Toronto v. Lambe turned on the distinction between the American and Canadian Constitutions; the validity of the reasoning in the case of McCulloch v. Maryland was not impugned. The difference between the two Constitutions was thus referred to by Palmer, J., in Ackman v. Town of Moncton, 24 New Bruns. 103:—

“In the United States, the States themselves granted the Federal Government its power of legislation on the specific subjects, and consequently parted with it and all additional power to enable their grantees to legislate generally and effectually on those subjects, and they did not reserve out of such grant to themselves power to legislate on any specified subject exclusively; and, therefore, there is nothing to prevent the operation of such grant so as to include all that may be fairly necessary to enable the Federal Legislature to legislate fully and effectually with reference to all the subjects granted, and to that extent to operate as a prohibition of any legislation by the grantors that would operate to affect such subject; while with us the powers to both are given by one instrument, and all of them are made exclusive, and in construing such instrument there does not appear to be any more reason for restricting provincial legislatures from legislating on such subjects exclusively assigned to them, than the Dominion Parliament from legislating on subjects exclusively put under its control. This construction not only prevents the a fortiori deduction from the principle of the American cases, but makes the principle of them, so far as they affect the questions of conflict of powers between the Federal and State legislatures, entirely inapplicable to the construction of our Constitution.”

Further, the same learned judge said that in his opinion cases decided by the courts of the United States, under that Constitution, were generally of little value on questions of conflict of power between the Dominion Parliament and the provincial legislatures under the British North America Act. This arises from the fact that, by reason of their having certain specified subjects of legislation exclusively assigned to them, the provincial legislatures of Canada cannot be so restricted in their actions as the State legislatures under the American Constitution. (Lefroy, Leg. Pow. in Canada, p. 667.) The States of the Commonwealth occupy positions corresponding to those of the American Union, the mode of distribution of powers under the Constitution of the Commonwealth resembling the American rather than the Canadian model; consequently the American cases are more valuable as aids in the interpretation of the Constitution of the Commonwealth than they have been found in the case of the Dominion.

There is one obvious difference between cases such as McCulloch v. Maryland, Dobbins v. Erie County, and Leprohon v. City of Ottawa, in which attempts were made to tax institutions and persons coming within the definition of “Federal Agencies and Instrumentalities,” and cases such as Thomson v. Union Pacific R. Co., Union Pacific R. Co. v. Peniston, The Bank of Toronto v. Lambe, in which the bodies held to be

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taxable by the States and by the Provinces, although created by federal law, were clearly not agencies and instrumentalities employed in the execution and maintenance of federal authority.

EXAMPLES OF FEDERAL TAXING POWER.—In addition to the numerous cases of commercial and trading taxes cited in our review of sub-sec. i. (trade and commerce), the following may be added as illustrations of the general taxing power:—

“If we measure the power of taxation residing in a State, by the extent of sovereignty which the people of a single State possess and can confer on its government, we have an intelligible standard, applicable to every case to which the power may be applied. … We are relieved, as we ought to be, from clashing sovereignty; from interfering powers; from a repugnancy between a right in one government to pull down what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy what there is a right in another to preserve. We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power. The attempt to use it on the means employed by the government of the Union, in pursuance of the Constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give.” (Marshall, C.J., in McCulloch v. Maryland, 4 Wheat. pp. 429-30.)

The doctrine which exempts the instruments of the Federal government from State taxation, is founded on the implied necessity for the use of such instruments by the government. Legislation which does not impair the usefulness of such instruments to serve the government is not within the rule of exemption. (National Bank v. Kentucky, 9 Wall. 353. See Pomeroy, Const. Law, p. 253.)

The exemption of agencies of the Federal Government from taxation by the States is dependent, not upon the nature of the agents nor upon the mode of their constitution, nor upon the fact that they are agents, but upon the effect of the tax; that is, upon the question whether the tax does in truth deprive them of power to serve the government as they were intended to serve it, or hinder the efficient exercise of their power. A tax upon their property merely, having no such necessary effect, and leaving them free to discharge the duties they have undertaken to perform, may be rightfully laid by the States; but a tax upon their operations, being a direct obstruction to the exercise of Federal powers, may not be. This doctrine was applied to the case of a tax by a State upon the real and personal property, as distinguished from its franchises, of the Union Pacific railway company—a corporation chartered by Congress for private gain, and all whose stock was owned by individuals, but which Congress assisted by donations and loans, and over which it reserved and exercised many special rights, and which amongst other things was bound at all times to transmit despatches and transport mails, troops, munitions of war, &c., for the government whenever so desired. (Railroad Co. v. Penistou, 18 Wall. 5. See Pomeroy, Const. Law, 253; Baker, Annot. Const. p. 172.)

“The principles to be deduced from the [American] cases appear to be, that the National government and the State governments are, as it were, distinct sovereignties; that the means and instrumentalities necessary for the carrying on of either government are not to be impaired by the other; that as the power to tax involves the power to impair, the exercise of such a power by the one government on the income of the officers of the other is inconsistent with independent sovereignty of the other; and that in such cases exemption from taxation, although not expressed in the national Constitution, exists by necessary implication.” (Harrison, C.J., in Leprohon v. City of Ottawa, 40 Upper Canada Rep. 478.)

“The Supreme Court, however, has declared that the general principles of the Constitution forbid Congress to tax the necessary governmental instrumentalities of the States, such as the salaries of officers and the revenue of municipal corporations, on the ground that such a power would enable the Congress to destroy the States, which nothing short of the amending power, the sovereignty, should be able to do in a Federal system of government. The United States courts determine, of course, in what these necessary instrumentalities, in any particular case, consist.” (Collector v. Day, 11 Wall. 113; cited Burgess, Political Sc. II. p. 151.)

A Federal law imposing a tax on the sale of lottery tickets is valid, although their sale is prohibited by State law. (License Tax Cases, 5 Wall 462; cited Baker, Annot Const. p. 16.)

A Federal excise tax, imposed on a license to manufacture and sell intoxicating liquors, is no bar to a prosecution under State laws prohibiting such manufacture and sale within the State. (License Tax Cases, 5 Wall. 462; Pervear v. Commonwealth, 5 Wall. 475. Id.)

A Federal law imposing a tax on State banks or banking associations held valid. (National Bank v. United States, 101 U.S. 1. Id.)

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A Federal tax on distilled spirits is not unconstitutional. It is in the nature of an excise, and the only limitation on the power of Congress in the imposition of taxes of this character is that they shall “be uniform throughout the United States.” (United States v. Singer, 15 Wall. 111; Same v. Van Buskirk, 15 Wall. 123. Id. p. 17.)

The Act imposing the succession tax is valid. It is neither a tax on land nor a capitation tax, although it is made a lien on the land to enforce its collection. Scholey v. Rew. 23 Wall. 331 Id.)

In the exercise of this power Congress may raise money in any way not forbidden by the Constitution, and as a means thereto it may tax employments. (United States v. Angell, 11 Fed. Rep. 34. Id.)

NO APPORTIONMENT OF TAXES.—The taxing power of Congress is seriously hampered by Art. I. sec. 3, of the Constitution, which provides that “direct taxes” shall be apportioned among the several States according to their respective numbers. In 1894, Congress passed an unapportioned income tax. The tax was imposed on the annual income of individuals exceeding 4000 dollars and the income of corporations of all amounts excepting mutual insurance companies and ecclesiastical bodies. At least four-fifths of the tax was payable by four States—New York, New Jersey, Pennsylvania, and Massachusetts. “In a number of the States whose representatives voted for the tax its incidence did not affect more than a very few individuals. The constitutionality of this proceeding, by the consent of the Attorney-General, who waived all questions of jurisdiction, was brought before the Supreme Court before the tax was payable. In their first decision the Court held unanimously that so much of the tax as applied to the income from municipal bonds was void, since those securities could not be taxed by the United States; and by a majority of four to two, that so much as applied to rents was also void, as a tax upon real estate, and consequently a direct tax which must be apportioned. They divided equally on the questions whether the invalidity of this part destroyed the rest; and whether the tax on the general income from personal property was also void as a direct tax. A re-argument was ordered, which Mr. Justice Jackson, whose illness had prevented his previous presence, left his death-bed to attend. He voted to sustain so much as did not apply to municipal bonds; but Mr. Justice Shires, who on the first decision had voted to sustain so much as did not apply to rents, changed his mind; and by a majority of five to four the whole income-tax was held to be void, as a direct tax which had not been apportioned.” (Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429 and 158 U.S. 601. Foster's Comm. I. p. 421.)

Such a question as that raised in Pollock v. Farmers' Loan and Trust Co. could not be raised under the Constitution of the Commonwealth, in which there is no rule for the apportionment of direct taxes or of any taxes among the States. See, however, the rules against “Discriminations” and “Preferences,” supra.

51. (iii.) Bounties165 on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth:

HISTORICAL NOTE.—In the Commonwealth Bill of 1891, this provision was embodied in sub-clause 2, “customs, excise and bounties,” and in that form it was adopted at the Adelaide and Sydney sessions in 1897. (Conv. Deb., Syd., 1897, pp. 1065-8.) At the Melbourne session, before the first report, it was placed in a sub-clause by itself.