stitution is not self-destructive. In other words, that the powers which it confers on the one hand it does not immediately take away on the other; that is to say, that the authority to tax which is given in express terms is not limited or restricted by the subsequent provisions of the Constitution or the amendments thereto, especially by the due process clause of the Fifth Amendment. McCray v. U. S., 195 U. S. 27, and authorities there cited. Nor is there anything in Carroll v. Greenwich Insurance Company, 199 U. S. 401, or Twining v. New Jersey, 211 U. S. 78, which in the remotest degree nullifies or restricts the principle thus stated. Indeed it is apparent, if the suggestion as to the meaning of those cases were assented to, it would result in rendering the Constitution uconstitutional. This certainly was the view entertained by the pleader when the answer in the case was prepared, since the sole attack on the constitutionality of the statute was based upon the assertion that it was repugnant to the due process clause of the Fifth Amendment. And such also is the line of the argument at bar where the fundamental rights secured by the Fifth Amendment are constantly referred to as the basis upon which the unconstitutionality of the statute is urged. Is there foundation for this claim under the Fifth Amendment? is then the issue, and that of course requires a statement of the grievances which it is asserted result from upholding the tax. They all come to this, that to impose a burden in the shape of a tax upon the use of a foreign-built yacht when a like tax is not imposed on the use of a domestic yacht under similar circumstances is so beyond the power of classification, so abhorrent to the sense of. justice, and so repugnant to the conceptions of free government as to be void even in the absence of express constitutional limitation. We do not stop to point out the obvious unsoundness of the contentions, nor indeed to direct attention to the self-evident demonstration of their want of merit even from the point of view of the power to classify, since the difference between things domestic and things foreign and their use are apparent on the face of things and are expressly manifested by the text of the Constitution. We say we do not stop to do these things because in any event we are of opinion the conclusion cannot be escaped that the propositions, each and all of them, whatever may be their form of expression, are in substance and effect but an assertion that the tax which the statute imposes is void because of a want of intrinsic uniformity, and therefore all the contentions are adversely disposed of by the previous decisions of this court on that subject. That which is settled beyond dispute may not be disregarded and be brought into the realm of that which is controvertible and questionable by the mere garb in which propositions are clothed." See to the same effect Rainey v. U. S., (1914) 232 U. S. 310, 34 S. Ct. 429, 58 U. S. (L. ed.) 617.

In Rainey v. U. S., (1914) 232 U. S. 310, 34 S. Ct. 429, 58 U. S. (L. ed.) 617, it was contended that error was committed below in not holding that the enforcement of the tax as to the defendant "would destroy rights vested in the defendant under the British Treaty of July 3, 1815" and would for such reason "deprive the defendant.of his property without due process of law." On this question the Supreme Court said: "The court below adequately disposed of this contention upon reasons which we also approve and adopt. The court said: "This defendant does not claim to be a British subject, and it is by no means clear that he is entitled to invoke the protection of the treaty. But, however that may be, it is well settled that when a treaty is inconsistent with a subsequent Act of Congress, the latter will prevail. Taylor v. Morton, 2 Curtis 454; and see Whitney v. Robertson, 124 U. S. 190; Head Money Cases, 112 U. S. 580; Cherokee Tobacco Case, 11 Wall. 616; Ropes v. Clinch, 8 Blatchf. 304. Treaties are contracts between nations and by the Constitution are made the law of the land. But the Constitution does not declare that the law so established shall never be altered or repealed by Congress. Good faith toward the other contracting nation might require Congress to refrain from making any change, but if it does act, its enactment becomes the controlling law in this country. The other nation may have ground for complaint, but every person is bound to obey the law. And as a corollary it follows that no person acquires any vested right to the continued operation of a treaty.'"" In this case it was also contended that error was committed below in not deciding that § 37 of the act was not void "as it is a bill for raising revenue, and it originated in the Senate and not in the House of Representatives, in contravention of Article I, section 7, of the Constitution of the United States." Answering this contention the Supreme Court said: "Without intimating that there is judicial power after an act of Congress has been duly promulgated to inquire in which House it originated for the purpose of determining its validity, and upon the assumption for the sake of the argument that such power may be invoked, again we think the court below disposed of the contention upon a ground entirely satisfactory which we adopt and approve, the court saying: 'I am also satisfied that the section in question is not void as a bill for raising revenue originating in the Senate and not in the House of Representatives. It appears that the section was proposed by the Senate as an amendment to a bill for raising revenue which originated in the House. That is sufficient. Having become an enrolled and duly authenticated Act of Congress, it is not for this court to determine whether the amendment was or was not outside the purposes of the original bill.'"

Causing the tax for the annual period to become due in September 1909 while giv

ing the section in some respects a retroactive effect does not cause it to be beyond the power of Congress under the Constitution to adopt. Billings v. U. S., (1914) 232 U. S. 261, 34 S. Ct. 421, 58 U. S. (L. ed. 596.

Nature of tax. - The tax levied by this section is an excise tax. Billings v. U. S., (1914) 232 U. S. 261, 34 S. Ct. 421, 58 U. S. (L. ed.) 596.

Tax on "use."-The tax is assessed on the "use" of the yacht. Billings v. U. S., (1914) 232 U. S. 261, 34 S. Ct. 421, 58 U. S. (L. ed.) 596, wherein the court said: "The tax being leviable and collectible, on the first of September in each year after the passage of the act, upon what was it assessed? is the question. It seems difficult

to answer it in clearer terms than does the text of the act when it provides that it shall be upon the use of the yachts with which the provision is concerned. But it is said to respond in the language of the act leaves the question virtually unanswered, since the extent of the use and its essential period are left wholly undetermined. But this is a misconception based upon a disregard of the fact that the word 'use' in the text is unqualified, from which it results that the recurrence of the tax is annual and depends upon two elements, ownership or charter rights, as specified in the act, and use for any time during the year. It is to be observed that the provision deals with ownership and distinguishes between ownership and use, since it bases the tax not upon the former but upon the latter. From this it follows that it is not ownership but the election during the taxing period of the owner to take advantage of one of the elements which are involved in ownership, the right to use which is the subject upon which the statute places the excise duty. In this view the fact of use, not its extent or its frequency, becomes the test, as distinguished from mere ownership, for that in the statutory sense could exist without use having taken place. The words of the statute under this construction were used in an every-day sense and not in a technical one: in other words but convey the distinction without reference to nice analysis of the nature of things which is commonly conceived to exist between ownership and use. Let it be conceded that the ownership of property includes the right to use, plainly we think, as use and ownership are distinguished one from the other in the provision, the word 'use' as there employed means more than the mere privilege of using which the owner enjoys, and relates to its primary signification, as defined by Webster

"The

act of employing anything or of applying it to one's service; the state of being so employed or applied.' If the use which arises from the fact of ownership without more was what the statute proposed, then it is inconceivable why the difference between use and ownership was marked in the provision and made the basis of the tax which it imposed. While this construction

in this case leads to the same conclusion as does that which the court below affixed to the statute, that is, that it taxed the privilege of use, or, in other words the potentiality of using involved in ownership, inherently there is this fundamental difference between the interpretation we give and that which the lower court adopted, since the privilege of use is purely passive (or subjective), a right which necessarily pertains to ownership and must exist where there is ownership, as one may not obtain ownership without acquiring the privileges of use which ownership gives. The other, on the contrary, that is, use in the statutory sense, although it arises from ownership, is active (objective), that is, it is the outward and distinct exercise of a right which ownership confers but which would not necessarily be exerted by the mere fact of ownership. The contention that inequality must be the result from making the tax depend upon mere use without reference to the extent of its duration, addresses itself not to the question of power, and is therefore beyond the scope of judicial cognizance. But it is to be observed that it may well have been that the character of the property with which the statute deals and the merc element of caprice as to its use and the uncertainties of the subject led to the fact of making the use alone the criterion as the wiser and juster method of operating equally upon all." To the same effect see United States v. Investors, etc., Realty Co., (C. C. A. 2d Cir. 1914) 214 Fed. 67.

A foreign built yacht out of commission is not in "use" and the owner is not liable for a tax under this section. Pierce v. U. S., (1914) 232 U. S. 290, 292, 34 S. Ct. 427, 58 U. S. (L. ed.) 609, 610, reversing (S. D. N. Y. 1910) 190 Fed. 359.

But the use need not be within the United States to make the one using a foreignbuilt yacht liable to the tax, but it may be outside the territorial limits of the United States. U. S. v. Bennett, (1914) 232 U. S. 299, 34 S. Ct. 433, 58 U. S. (L. ed.) 612, wherein the court said: "But it is said that as in any event the use which the statute taxes is solely a use within the United States, therefore the statute does not embrace this case, since the finding establishes that the yacht whose use is here taxed was wholly used and located outside of the territorial limits of the United States. We fail, however, to find in the provisions of the statute any language which would justify our affixing to the word 'use' the restricted sense upon which the proposition is based. On the contrary, the use provided for in the statute is unqualified, is generic and must be enforced in that sense if the statute is to be given its plain meaning. It is true that in deciding a previous case we held that the statute would not be construed without clear intendment manifested to that effect as including a tax on a citizen permanently domiciled outside of the geographical limits of the United States. But that ruling was based upon the

proposition that as a taxing statute was usually confined to persons within the territorial jurisdiction of a taxing authority and to do otherwise would be exceptional, unless such view was compelled by its terms, the statute here involved ought not to be construed as having been adopted to accomplish such unusual and strange result. The directly opposite, is here applicable, since it is usual, where the taxing power is called into play as to an individual domiciled within the territorial limits of the taxing authority, to cause the manifestation of taxing power to be coterminous with the taxing authority of the Government levying the tax. Therefore it follows that the principle of interpretation previously applied has no possible application to the construction of the word 'use,' which we are now considering."

Foreign built vessel. A vessel originally built in a foreign country but rebuilt in the United States with new materials purchased in a foreign country, is not a foreignbuilt vessel within the meaning of the statute. United States v. Investors, etc., Realty Co., (C. C. A. 2d Cir. 1914) 214 Fed. 67.

Persons liable to tax. - Citizens of the United States permanently resident and domiciled in a foreign country are not subject to the tax imposed by this section. U. S. v. Goelet, (1914) 232 U. S. 293, 34 S. Ct. 431, 58 U. S. (L. ed.) 610, wherein the court said: "Not in the slightest degree questioning that there was power to impose the excise duty on the citizen owning a foreign-built yacht wholly irrespective of the fact that he was permanently domiciled in a foreign country and putting out of view all questions concerning the non-application of the statute to the case in hand purely because of the situs of the yacht itself, the single matter for decision is, do the terms of the statute provide for the payment by a citizen of the United States who has a permanent residence and domicile abroad of an excise duty because of the use by him as owner or charterer under the terms of the statute of a foreign-built yacht. It may not be doubted, as observed by the trial court in these cases (omitting the consideration of taxes imposed on property having a situs within the jurisdiction of the taxing authority), speaking in a general sense that the taxing power, when exerted, is not usually applied to those, even albeit they are citizens, who have a permanent domicile or residence outside of the country levying the tax. Indeed we think it must be conceded that the levy of such a tax is so beyond the normal and usual exercise of the taxing power, as to cause it to be, when exerted, of rare occurrence and in the fullest sense exceptional. This being true, we must approach the statute for the purpose of ascertaining whether its provisions sanction such rare and exceptional taxation. sidering the text, we search in vain for the express declaration of such authority. True, it is argued by the United States, that as the tax is levied on any citizen using a for

Con

As

eign-built yacht and as any includes all, therefore the statute expressly embraces a citizen permanently domiciled and residing abroad. But this argument in effect begs the question for decision which is whether the use of the general words, any citizen, without more should be considered as expressing more than the general rule of taxation, or in other words can be treated without the expression of more as embracing the exceptional exertion of the power to tax one permanently residing abroad. illustrative and throwing light on the real question for decision, action taken by Congress in exerting its taxing power is at least worthy of note. For instance the provisions of the income tax law of June 30, 1864 (c. 173, 13 Stat. 223, 281), expressly extended that tax to those domiciled abroad and a like purpose is beyond doubt expressed in the income tax of 1913 (subdivision 1 of the Tariff Act of October 3, 1913). But without resting this case upon the implication against the conferring of the authority here claimed from the mere want of express statement in the statute of the giv ing of such exceptional power, and treating such implication as not in and of itself absolutely conclusive, we think when to the force of such inference, even though it be limited, there is added the weight arising from that which is expressly stated in the statute, the conclusion against want of power conferred to levy the tax here asserted is established. This arises from the command of the statute that the tax shall be levied by the collector of customs of the district nearest the residence of the managing owner,' etc., since the consequence of such command is to associate residence with citizenship and establishes such a relationship between them as to bring about the result which we have just stated. Nor do we think there is anything as suggested by the argument of the United States in the case of Eidman v. Martinez, 184 U. S. 578, which militates against the views just stated and this also is true of the sugges tion made in argument concerning the circulation by those interested in the enactment, of the provision of a list of yachts which would become subject to the tax if the provision was enacted, which list included the yacht taxed in this case The expectations of those who sought the enactment of legislation may not be used for the purpose of affixing to legislation when enacted a meaning which it does not express." See to the same effect U. S. v. Bennett, (1914) 232 U. S. 308, 34 S. Ct. 437, 58 U. S. (L. ed.) 616.

Tax when due. In Billings v. U. S., (1914) 232 U. S. 261, 34 S. Ct. 421, 58 U. S. (L. ed.) 596, the question arising whether a tax on a yacht under the section became due in September 1909, the court said: "Was the tax due on the first day of September, 1909, or was it only due on the same day in September, 1910? In view of the positive direction that the tax shall be levied and collected on the first day of

September, we can see no escape from the conclusion that the court below was right in holding that it became due on the first day of September after the passage of the act. The word 'annually' upon which so much reliance to the contrary is placed, is manifestly used not for the purpose of postponing the time of payment, but rather as provision for continuity; that is, the word but shows the purpose of fixing the annual duty of levying and collecting the tax on the designated day. This becomes quite apparent when it is observed that if the word annually' be removed, there would be room for the implication that the tax was to be but sporadic and would therefore cease to be collectible after one payment. And it is equally clear that the six months clause is concerned not with the period when the tax imposed shall be levied and collected, but addresses itself to the subject-matter upon which the tax is placed; in other words, it qualifies the word 'charter' and therefore only indicates when the use of a chartered vessel shall become subject to the duty imposed." See also to the same effect U. S. v. Bennett, (1914) 232 U. S. 299, 34 S. Ct. 433, 58 U. S. (L. ed.) 612; Rainey v. U. S., (1914) 232 U. S. 310, 34 S. Ct. 429, 58 U. S. (L. ed.) 617.

The validity of the option to pay an ad valorem duty of 35 per cent contained in this section is not in issue where the action is to recover a tax against an owner of a foreign built yacht who has not seen fit to exercise his option. Rainey v. U. S., (1914) 232 U. S. 310, 34 S. Ct. 429, 58 U. S. (L. ed.) 617, wherein it was contended that error was committed in not deciding that § 37 of the act of 1909 "in so far as it lays a duty of 35 per cent. ad valorem is

a direct tax and void because not apportioned in contravention of Art. I, § 2, and Art. I, § 9 of the Constitution of the United States." To this contention the court replied as follows: "We think the reasons given in the comprehensive opinion of the lower court in ruling adversely on this proposition are so conclusive that we adopt them and make them our own. The court said: "The owner is not required to pay this duty. He is merely given the option to pay it. In its nature it would seem to be a duty on imports and such duties are not held to be direct taxes requiring apportionment. But it is unnecessary to pass upon this question. These actions are for the recovery of the annual tonnage tax and the validity of the ad valorem tax is not involved. The provisions concerning that tax are separable from those concerning the annual tax. The one is not dependent upon the other and there is no indication that Congress would not have adopted the one without the other. Under such conditions it is well settled that unconstitutional provisions may be separated from legal provisions and effect be given to the latter."

An action in personam lies against the owner of a foreign-built yacht liable to a tax under this section for its recovery. Rainey v. U. S., (1914) 232 U. S. 310, 34 S. Ct. 429, 58 U. S. (L. ed.) 617; Billings v. U. S., (1914) 232 U. S. 261, 34 S. Ct. 421, 58 U. S. (L. ed.) 596.

Interest is recoverable by the government on taxes imposed by this section from the time when they become due. Billings v. U. S., (1914) 232 U. S. 261, 289, 34 S. Ct. 421, 428, 58 U. S. (L. ed.) 596, 608, modifying (S. D. N. Y. 1911) 190 Fed. 359.

Payments to widows, 300.
Rank, 300.

Students, 299.

Naval aviators.

AGRICULTURE-cont'd.
Report to Congress, 2.
Samples furnished, 3.

Scientific investigators, salaries, 2.
Standard barrel for dry commodities, 2.

ALASKA.

Appeals to Circuit Court of Appeals, 622
note.

Attachment, order of sale, 320 note.
Coal land act.

Adverse claims, 14.

Assignments, etc., of leases, 14.
Consolidation of leases, 12.

Directors, etc., of corporation, punish-

ment, 12.

Easements, 13.

Forfeiture of interest, 12.

Forfeiture of lease, 13, 14.

Lease of lands adversely claimed, 14.

Lessees when entitled to

lands, 11.

Limited licenses, 13.

Net profits, 13.

Oaths, 15.

Pending proceedings, 14.

additional

Quantity of land governed by lease, 12.
Repeal of conflicting acts, 15.

Reservation of lands, 10.

Reservations in leases, 13.
Restraint of trade, 13.

Royalties, 13.

Rules and regulations, 15.
Scope of act, 14.
Surveys, 10.

Terms of leases, 13.

Violation of act, 12.

Costs of prosecution, 10.
Exceptions.

Authentication, 320 note.

When and how taken, 320 note.
Income tax on railroads, 9.
Lease of unreserved lands, 11.
Legislative power, 10.

Liens, prevention by posting notice, 321
note.

Liquor licenses, 322 note.

Local legislature, authority, 323 note.
Power of courts to enforce statutes, 10.
Public lands, reservation for educational
uses, 15.

Punishment for selling liquor without
license, 322 note.

Railroads.

Amount of expenditures, 8.

Construction and operation by govern-
ment, 7.

Disposal of moneys derived from sales,
etc., of public property, 9.
Disposal of public domain, 7.
Earnings, 9.
Reports, 9.