OLEOMARGARINE. 857 



only, be as willing to sell butter to those who call for it as he will 

 oleomargarine. He will not take the chance of prosecutions under 

 the State laws unless there is some incentive. 



Therefore the 10-cent tax will act merely as an agent to destroy 

 that fraudulent incentive. A very small proportion of the people who 

 really know what they are buying will be put to any greater expense 

 in their purchases, because they are few who knowingly buy the 

 artirle, compared with those who are defrauded. 



And in the case of hotels and restaurants, the public gets absolutely 

 no benefit from the economy of their proprietors in foisting a coun- 

 terfeit upon their guests. Whatever saving there is in the matter 

 goes absolutely into the pockets of the proprietors, while the guest 

 pays the same price he always did for his entertainment, and the dairy- 

 man loses the market for that trade, which in the aggregate is enormous 

 throughout the United States. 



In this way we believe that the 10-cent tax will not destroy any 

 legitimate business, but only that part of the traffic which is fraudu- 

 lent. On the other hand, the reduction of the tax from 2 cents to 

 one-fourth cent upon the uncolored article will give the makers an 

 opportunity to furnish those who really desire the article for nourish- 

 ment and economy's sake oleomargarine at a much lower price. 



But, even should it be considered that the tax would destroy to a 

 large extent the production and sale of colored oleomargarine,' what 

 do the authorities say of the use of the taxing power in such cases'^ 



Chief Justice Marshall, in the case of McCulloch v. Maryland, said: 



That the power to tax involves the power to destroy; that the power to destroy 

 may defeat and render useless the power to create; that there is a plain repugnance 

 in conferring on one Government a power to control the constitutional measures of 

 another, which other, with respect to those very measures, is declared to be supreme 

 over that which exerts the control, are propositions not to be denied. 



Justice Story, in his work on the Constitution (Book 1, pp. 677, 

 678), says: 



Nothing is more clear from the history of nations than the fact that the taxing 

 power is very often applied for other purposes than revenue. It is often applied as 

 a virtual prohibition; sometimes to banish a noxious article of consumption, some- 

 times as a suppression of particular employments. 



Justice Woodbury, in the case of Pierce et al. v. New Hampshire 

 (5 Wheat., 608), said: 



But I go further on this point than some of the courts and wish to meet the case 

 in front and in its worst bearings. If, as in the view of some, these license laws are 

 in the nature of partial or entire prohibitions to sell certain articles as being danger- 

 ous to public health and morals, it does not seem to me that their conflict with the 

 Constitution would by any means be clear. Taking for granted that the real design 

 in passing them is the avowed one (prohibition), they would appear entirely defen- 

 sible as a matter of right thoughgprohibiting sales. 



In Walker's Science of Wealth this rule of taxation is also general: 



The heaviest taxes should be imposed upon those commodities the consumption of 

 which is especially prejudicial to the interests of the people. 



Desty, in his work on Taxation, says: 



One purpose of taxation sometimes is to discourage a business, and perhaps put it 

 out of existence, and it is taxed without any idea of protection attending the burden. 



The authorities are very clear on all these points, and particularly 

 on the right of Congress to use its discretion in the amount of tax 

 levied upon any article. 



