Nicol v. Ames In re Nichols. Skillen v. Ames, U. S. Marshal. Ingwersen v. United States. Original, 625, and 636, Nos. 435

CourtUnited States Supreme Court
Writing for the CourtPECKHAM
Citation19 S.Ct. 522,173 U.S. 509,43 L.Ed. 786
Decision Date03 April 1899
Docket Number4,Nos. 435
PartiesNICOL v. AMES, U. S. Marshal. In re NICHOLS. SKILLEN v. AMES, U. S. Marshal. INGWERSEN v. UNITED STATES. Original, 625, and 636

173 U.S. 509
19 S.Ct. 522
43 L.Ed. 786
NICOL

v.

AMES, U. S. Marshal. In re NICHOLS. SKILLEN v. AMES, U. S. Marshal. INGWERSEN v. UNITED STATES.

Nos. 435, 4 Original, 625, and 636.
April 3, 1899.

Petition for Writ of Habeas Corpus.

Page 510

These cases involve the validity and construction of some of the provisions of section 6, and a portion of Schedule A, therein referred to, of the act of congress approved June 13, 1898 (30 Stat. 448), entitled 'An act to provide ways and means to meet war expenditures, and for other purposes,' commonly spoken of as the 'War Revenue Act.' The cases come before the court in this way:

No. 435 is an appeal to this court from an order made by the circuit court of the United States for the Northern district of Illinois discharging a writ of habeas corpus, and remanding the petitioner to the custody of the marshal. The petition to the circuit court for the writ alleged that the petitioner, Nicol, had been convicted in the United States court for the Northern district of Illinois upon an information, duly filed, charging him with selling at the Chicago Board of Trade, and at its rooms, two car loads of oats, 'without then and there making and delivering to the buyer any bill, memorandum, agreement, or other evidence of said sale, showing the date thereof, the name of the seller, the amount of the same, and the matter or thing to which it referred, as required by the act of congress' above mentioned. He was sentenced to pay a fine, and to be imprisoned until paid. He refused to pay, and was taken into custody by the marshal. That part of the act referring to the making and delivering of a bill or memorandum, etc., the petitioner claimed was unconstitutional. The circuit court, after argument, held the law valid, and the conviction legal. 89 Fed. 144.

No. 4 Original is an application to this court for leave to file a petition for a writ of habeas corpus to bring before the court the petitioner, George R. Nichols, and for a rule requiring the marshal for the Northern district of Illinois, in whose custody the petitioner is, to show cause why the writ should not issue. The petition states that Nichols was convicted and sentenced, under the act of congress above mentioned, upon an information filed in the district court of the United States for the Northern district of Illinois, for selling at the Chicago Board of Trade, of which he was then a member, for immediate delivery, to one Roloson, also a member of such board,

Page 511

10 tierces, or 3,000 pounds, of hams, then in Chicago, at a price named, amounting to $195, and on the sale unlawfully making and delivering to Roloson a bill and memorandum of the sale, showing the date thereof, the name of the seller, the amount of the same, and the matters and things to which it referred, without having the proper stamps affixed to said bill or memorandum, denoting the internal revenue accruing upon said sale, bill, or memorandum, as required by law, but, on the contrary, unlawfully refusing and neglecting to affix any such stamps to said bill or memorandum. Upon the trial the jury rendered a verdict finding the petitioner guilty as charged in the information, and the court sentenced him to pay a fine of $500, and to be committed to the county jail until such fine and costs should be paid. The petitioner refused t pay the fine, and an order of commitment was made out, and placed in the hands of the marshal, who arrested the petitioner, and he is now in the custody of the marshal. The petitioner upon the trial claimed that the act in regard to the matters named in the information was unconstitutional, and therefore no offense was charged in the information, that the court had no jurisdiction to try him, and that his conviction and subsequent arrest and detention were wholly without jurisdiction. The petitioner gives as a reason for his application to this court for the writ of habeas corpus that one James Nicol (the appellant in No. 435) had been convicted of substantially the same offense in the district court for the Northern district of Illinois, and that he had made application for a writ of habeas corpus to the circuit court held in that district, which court, after a hearing upon the writ, decided against Nicol, and in favor of the constitutionality of the act of congress herein questioned; and the petitioner herein alleges that it would be a vain act to apply for a writ of habeas corpus to the same circuit court which had already, after a hearing, decided the question in a way unfavorable to the claims of the petitioner herein.

No. 625 is also an appeal to this court from an order of the circuit court of the United States for the Northern district of Illinois discharging a writ of habeas corpus, and remand-

Page 512

ing the petitioner, Skillen, to the custody of the marshal. The petitioner was convicted upon an information of the same nature as is above set forth in No. 435, excepting that the information in this case alleged that the contract was for future delivery of 5,000 bushels of corn, and that Skillen unlawfully failed and refused to make and deliver to the buyer any bill or memorandum as required by the act. The petitioner was convicted upon a trial had upon such information, and the court imposed upon him a fine in the sum of $500, besides costs, and directed that he sould be committed to the county jail until such fine and costs were paid. The same proceedings were then taken as are set forth in No. 435.

No. 636 is a writ of error to the district court of the United States for the Northern district of Illinois, to review a conviction of the plaintiff in error upon an information charging him with making a sale of certain cattle at the Union Stock Yards, Chicago, and delivering the same, without making any written memorandum, etc., as required by the act of congress. The information also charged, in a second count, a sale at the same place of certain live stock, and a delivery of a memorandum of the kind mentioned in the act of congress, and a failure and refusal to affix the stamps as provided for in such act. Upon the trial a nolle prosequi was duly entered upon the first count. The plaintiff in error claims that the act of congress is unconstitutional, on the same grounds mentioned in the other cases, and sets up, as a special and separate defense, that a sale at the stock yards is not included in the act of congress, as it is not an 'exchange or board of trade or other similar place,' within the meaning of that act.

Henry S. Robbins, John G. Carlisle, and John S. Miller, for appellants, petitioner, and plaintiff in error.

Sol. Gen. Richards, for appellee, respondent, and defendant in error.

Page 513

Mr. Justice PECKHAM, after stating the facts, delivered the opinion of the court.

These cases may be considered together, because they involve substantially the same question, only the last one includes, in addition, a question of construction, as distinguished from a question of the validity, of the statute.

That portion of the act which is involved is set forth in the margin.1 30 Stat. 448, 450, 458.

Page 514

It is seen that the cases embrace the facts of a member of the board of trade of Chicago, selling, for immediate delivery, products or merchandise (a) without making a memorandum; (b) maki g a memorandum, but omitting to put stamps on it; (c) making a sale for future delivery, and failing to put stamps on the memorandum.

In the Nicol Case (No. 435), the sale was by a citizen to a citizen of the state of Illinois.

The case of sales at the Union Stock Yards at Chicago is also included, where a memorandum is delivered, but the vendor neglects and refuses to affix the stamps to the memorandum.

The objections to the validity of the act are, stated generally, that it is a direct tax, and is illegal because not apportioned as required by the constitution. If an indirect tax, it is a stamp tax on documents not required to be made under state law in order to render the sale valid, and congress has no power to require a written memorandum to be made of transactions within the state for the purpose of placing a stamp thereon. It is not a 'privilege tax,' within the meaning of that term, because there is no privilege other than that which every man has to transact his own business in his own house or in his own office under such regulations as he may choose to adopt; and such a choice cannot be, in any fair use of the term, a privilege which is subject to taxation.

These questions are involved in each case, while in the last one it is further objected that the sales at the stock yards are not included in the terms of the act; and evidence was adduced upon the trial as to the nature of the business conducted at the stock yards, and the manner in which it was performed. It will be adverted to hereafter when we come to a discussion of the meaning and proper construction of the act.

It is always an exceedingly grave and delicate duty to decide upon the constitutionality of an act of the congress of the United States. The presumption, as has frequently been

Page 515

said, is in favor of the validity of the act; and it is only when the question is free from any reasonable doubt that the court should hold an act of the lawmaking power of the nation to be in violation of that fundamental instrument upon which all the powers of the government rest. This is particularly true of a revenue act of congress. The provisions of such an act should not be lightly or inadvisedly set aside, although, if they be plainly antagonistic to the constitution, it is the duty of the court to so declare. The power to tax is the one great power upon which the whole national fabric is based. It is as necessary to the existence and prosperity of a nation as is the air he breathes to the natural man. It is not only the power to destroy, but it is also the power to keep alive.

This necessary authority is...

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141 practice notes
  • Howes Bros. Co. v. Massachusetts Unemployment Comp. Comm'n
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 30, 1936
    ...a tax on the use of carriages, Hylton v. United States, 3 Dall. 171, 1 L.Ed. 556, on sales at exchanges or boards of trade, Nicol v. Ames, 173 U.S. 509, 19 S.Ct. 522, 43 L.Ed. 786, on the transmission of property from the dead to the living, Knowlton v. Moore, 178 U.S. 41, 20 S.Ct. 747, 44 ......
  • People v. Woody, Cr. 1794
    • United States
    • California Court of Appeals
    • December 6, 1963
    ...and those of which it takes judicial notice. (Quong Wing v. Kirkendall, 223 U.S. 59, 64, 32 S.Ct. 192, 193, 56 L.Ed. 350; Nicol v. Ames, 173 U.S. 509, 516, 19 S.Ct. 522, 526, 43 L.Ed. 786; Abbey Land & Improvement Co. v. San Mateo, supra, 167 Cal. 434, 437, 139 P. 1068, 52 L.R.A.,N.S., 408.......
  • State v. Clement Nat. Bank
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 16, 1911
    ...Ct. 580, 29 L. Ed. 615. The provisions of a revenue act, especially, ought not to be lightly or inadvertently set aside. Nicol v. Ames, 173 U. S. 509, 19 Sup. Ct. 522, 43 L. Ed. 786. Every presumption is to be made in favor of the constitutionality of a statute, and it is not to be adjudged......
  • Bacon v. Ranson, No. 32418.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...Stone-Tracy Co., 220 U.S. 107, 55 L. Ed. 389; Cook v. Marshall County, 196 U.S. 261, 49 L. Ed. 471, 25 Sup. Ct. Rep. 233; Nicol v. Ames, 173 U.S. 509, 43 L. Ed. 786, 19 Sup. Ct. Rep. 522; Brushaber v. Union Pac. Railroad Co., 240 U.S. 1, 60 L. Ed. 493, 36 Sup. Ct. Rep. 236; Black, "Income a......
  • Request a trial to view additional results
140 cases
  • Howes Bros. Co. v. Massachusetts Unemployment Comp. Comm'n
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 30, 1936
    ...a tax on the use of carriages, Hylton v. United States, 3 Dall. 171, 1 L.Ed. 556, on sales at exchanges or boards of trade, Nicol v. Ames, 173 U.S. 509, 19 S.Ct. 522, 43 L.Ed. 786, on the transmission of property from the dead to the living, Knowlton v. Moore, 178 U.S. 41, 20 S.Ct. 747, 44 ......
  • People v. Woody, Cr. 1794
    • United States
    • California Court of Appeals
    • December 6, 1963
    ...and those of which it takes judicial notice. (Quong Wing v. Kirkendall, 223 U.S. 59, 64, 32 S.Ct. 192, 193, 56 L.Ed. 350; Nicol v. Ames, 173 U.S. 509, 516, 19 S.Ct. 522, 526, 43 L.Ed. 786; Abbey Land & Improvement Co. v. San Mateo, supra, 167 Cal. 434, 437, 139 P. 1068, 52 L.R.A.,N.S., 408.......
  • State v. Clement Nat. Bank
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 16, 1911
    ...Ct. 580, 29 L. Ed. 615. The provisions of a revenue act, especially, ought not to be lightly or inadvertently set aside. Nicol v. Ames, 173 U. S. 509, 19 Sup. Ct. 522, 43 L. Ed. 786. Every presumption is to be made in favor of the constitutionality of a statute, and it is not to be adjudged......
  • Bacon v. Ranson, No. 32418.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...Stone-Tracy Co., 220 U.S. 107, 55 L. Ed. 389; Cook v. Marshall County, 196 U.S. 261, 49 L. Ed. 471, 25 Sup. Ct. Rep. 233; Nicol v. Ames, 173 U.S. 509, 43 L. Ed. 786, 19 Sup. Ct. Rep. 522; Brushaber v. Union Pac. Railroad Co., 240 U.S. 1, 60 L. Ed. 493, 36 Sup. Ct. Rep. 236; Black, "Income a......
  • Request a trial to view additional results
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