was made, or other similar stock yards in the United States where live stock is received and where it is sold by the owner or by his agent, are not exchanges or boards of trade, or other similar places, within the meaning of the act in question. If it is competent for Congress, as contended by counsel for the government in board of trade cases, to put into a class, for the purposes of taxation, sales made on 'change, it is not possible to bring within that class sales of cattle in the pens of the Union Stock Yards, and still preserve the uniformity required by the Constitution. Head Money Cases, 112 U. S. 580, 28 L. ed. 798; Kentucky Railroad Tax Cases, 115 U. S. 321, 29 L. ed. 414; Magoun v. Illinois Trust & Sav. Bank, 170 U. Š. 283, 42 L. ed. 1037; Hayes v. Missouri, 120 U. S. 68, 30 L. ed. 578; Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 33 L. ed. 892; Gulf, C. & 8. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666. The phrase "or other similar places," in Schedule A of the war revenue act, if open to the interpretation given by the court below, is void for uncertainty and for indefiniteness. Mr. John K. Richards, Solicitor General, for appellee in No. 435 and No. 625, and for respondent in No. 4 Original, and for defendant in error in No. 636: shall be necessary and proper for carrying into execution the foregoing power. McCulloch v. Maryland, 4 Wheat. 316, 4 L. ed. 579. The selection of the means rests with Congress. Unless these means are forbidden by the Constitution the courts will not interfere. Where the constitutionality of a law is involved, every possible presumption is in favor of its validity, and this continues until the contrary is shown beyond a reasonable doubt. Hughes's Case, 1 Bland, Ch. 46; Weale v. Proprietors of West Middlesex Waterworks Co. 1 Jac. & W. 371; Bank of Columbia v. Ross, 4 Harr. & M'H. 456; State v. Boon, 1 N. C. (Taylor & C.) 103, 246; Drake v. Drake, 15 N. C. (4 Dev. L.) 114; State v. Partlow, 91 N. C. 550; Com. v. Bank of Penn-made sylvania, 3 Watts & S. 173; Leavitt v. Lovering, 64 N. H. 607, 1 L. R. A. 58; Ward v. Ward, 37 Tex. 389; Green v. Wood, 7 Q. B. 178; Doe, Davenish, v. Moffatt, 15 Q. B. 257; McConvill v. Jersey City, 39 N. J. L. 38. If this tax applies to the sale of cattle here in question then the tax is a direct tax and violates the rule of apportionment. A tax upon a sale of merchandise is a tax upon the merchandise itself. Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678; Dobbins v. Erie County Comrs. 16 Pet. 435, 10 L. ed. 1022; Almy v. California, 24 How. 169, 16 L. ed. 644; Welton v. Missouri, 91 U. S. 275, 23 L. ed. 644; Cook v. Pennsylvania, 97 U. S. 566, 24 L. ed. 1015; Pollock v. Farmers' Loan & T. Co. 157 U. S. 581, 39 L. ed. 819. Sinking-Fund Cases, 99 U. S. 700, 25 L. ed. 496; Powell v. Pennsylvania, 127 U. S. 678, 32 L. ed. 253; Fletcher v. Peck, 6 Cranch, 87, 3 L. ed. 162; Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. ed. 629; Livingston County v. Darlington, 101 U. S. 407, 25 L. ed. 1015. The Constitution expressly confers upon Fong Yue Ting v. United States, 149 U. S. 698, 37 L. ed. 905; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 38 L. ed. 1047, 4 Inters. Com. Rep. 545. With the exception and under the limitation of the Constitution, the taxing power reaches every subject of taxation. License Tax Cases, 5 Wall. 462, 18 L. ed. 497; Pacific Ins. Co. v. Soule, 7 Wall. 433, 19 L. ed. 95; State Tax on Foreign-Held Bonds, 15 Wall. 300, 21 L. ed. 179. In executing the taxing power Congress may, through classification, select the subjects of taxation, and thus use its discretion in distributing equitably the burdens of gov ernment. Magoun v. Illinois Trust & Sav. Bank, 170 U. S. 283, 42 L. ed. 1037. This is a tax upon the sale, agreement of sale, or agreement to sell, not upon the memorandum thereof. Cook v. Pennsylvania, 97 U. S. 566, 24 L. ed. 1015. Only those sales, agreements of sale, or agreements to sell, are taxed which are made on commercial exchange. Such sales are under conditions which distinguish them from other sales, thus affording a ground for classification. The court will take judicial notice of what a commercial exchange is. Anderson v. United States, 171 U. S. 604, ante, 300; Hopkins v. United States, 171 U. S. 578, ante, 290; Hansen v. Boyd, 161 U. S. 397, 40 L. ed. 746; Nelson v. Board of Trade, 58 Ill. App. 399. The tax is uniform because every sale, agreement of sale, or agreement to sell, made at an exchange, is taxed alike. All persons similarly situated are treated in the same way and subjected to an equal burden. The tax operates with the same force and effect in every place in the United States where the subject of it is found. Head Money Cases, 112 U. S. 580, 28 L. ed. 798; Tappan v. Merchants' Nat. Bank, 19 Wall. 490, 22 L. ed. 189. The tax is not on personal property or the income thereof. It is therefore not a direct tax. It is the duty on the disposition or transfer of merchandise, which, payable in the first instance by the seller who voluntarily goes upon the exchange, may be shifted in whole or in part to the buyer. It is therefore an indirect tax-an excise. Pollock v. Farmers' Loan & T. Co. 157 U. S. 429, 39 L. ed. 759, 158 U. S. 601, 39 L. ed. 1108; Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678; Almy v. California, 24 How. 169, 16 L. ed. 644; Cook v. Pennsylvania, 97 U. S. 566, 24 L. ed. 1015; Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194, 41 L. ed. 683; Postal Teleg. Cable Co. v. Adams, 155 U. S. 688, 39 L. ed. 311, 5 Inters. Com. Rep. 1; Brown v. Houston, 114 U. S. 623, 29 L. ed. 257; Pacific Ins. Co. v. | to adopt, and such a choice cannot be in any [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. 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. That portion of the act which is involved It is always an exceedingly grave and deli- nation to be in violation of that fundamental 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 This necessary authority is given to Con made under state law in order to render the 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. Sec. 6. That on and after the first day of July, 1898, there shall be levied, collected, and paid, for and in respect of the several bonds, debentures, or certificates of stock and of indebtedness, and other documents, instruments, matters, and things mentioned and described in Schedule A of this act, or for or in respect of the vellum, parchment, or paper upon which such instruments, matters, or things, or any of them, shall be written or printed by any person or persons, or party who shall make, sign, or Issue the same, or for whose use or benefit the same shall be made, signed, or issued, the sev eral taxes or sums of money set down in figures against the same, respectively, or otherwise specified or set forth in the said schedule. SCHEDULE A.-STAMP TAXES. (30 Stat. at L. 448-458.) Upon each sale, agreement of sale, or agreement to sell any products or merchandise at any exchange or board of trade, or other similar place, either for present or future delivery, for each one hundred dollars in value of said sale or agreement of sale or agreement to sell, one cent, and for each additional one hundred dollars or fractional part thereof in excess of one hundred dollars, one cent; Provided, That on every sale or agreement of sale or unless in proportion to the census or enumeration directed to be taken, and no tax or duty can be laid on articles exported from any state. Constitution, article 1, sec. 8, and sec. 9, subdivisions 4 and 5. As thus guarded, the whole power of taxation rests with Congress. The commands of the Constitution in this, as in all other respects, must be obeyed; direct taxes must be apportioned, while indirect taxes must be uniform throughout the United States. But while yielding implicit obedience to these constitutional requirements, it is no part of the duty of this court to lessen, impede, or obstruct the exercise of the taxing power by merely abstruse and subtle distinctions as to the particular nature of a specified tax, where such distinction rests more upon the differing theories of political economists than upon the practical nature of the tax itself. In deciding upon the validity of a tax with reference to these requirements, no microscopic examination as to the purely economical or theoretical nature of the tax should [516] be indulged in for the purpose of placing it in a category which would invalidate the tax. As a mere abstract, scientific, or economical problem, a particular tax might possibly be regarded as a direct tax, when as a practical matter pertaining to the actual operation of the tax it might quite plainly appear to be indirect. Under such circumstances, and while varying and disputable theories might be indulged as to the real nature of the tax, a court would not be justified, for the purpose of invalidating the tax, in placing it in a class different from that to which its practical results would consign it. Taxation is eminently practical, and is in fact brought to every man's door, and for the purpose of deciding upon its validity a tax should be regarded in its actual, practical results, rather than with reference to those theoretical or abstract ideas whose correctness is the subject of dispute and contradiction among those who are experts in the science of political economy. of trade, and then to inquire more in detail as to the validity of the act with reference to sales at such places. The Chicago Board of Trade may be taken as a type of the *others[517] in existence throughout the country, because the same features exist in all of them, while the size and importance of the Chicago institution serve only to make such features more prominent and their effect more easily discernible. We say the same features exist in all of the exchanges or boards of trade because we have the right to consider facts without particular proof of them, which are universally recognized and which relate to the common and ordinary way of doing business throughout the country, and while we could not take notice without proof as to any particular constitution or by-law of a body of this description, yet we are not thereby cut off from knowledge of the general nature of those bodies and of the manner generally in which business therein is conducted. In searching for proper subjects of taxation to raise moneys for the support of the government, Congress must have the right to recognize the manner in which the business of the country is actually transacted; how, among other things, the exchange of commodities is effected; what facilities for the conduct of business exist; what is their nature and how they operate; and what, if any, practical and recognizable distinction there may be between a transaction which is effected by means of using certain facilities and one where such facilities are not availed of by the parties to the same kind of a transaction. Having the power to recognize these various facts, it must also follow that Congress is justified, if not compelled, in framing a statute relating to taxation, to legislate with direct reference to the existing conditions of trade and business throughout the whole country and to the manner in which they are carried on. Coming to a consideration of the objections raised to this statute it is well to first consider the nature of an exchange or board It appears in this record that the Chicago Board of Trade is a voluntary association of individuals who meet together at a certain building owned by the association for the purpose of there transacting business. This particular board is incorporated under an act of the legislature of Illinois, though its corporate character does not, in our judg ment, form a material consideration in the inquiry. The members of the association meet daily between certain business hours for the purpose of buying and selling flour, wheat, corn, oats, and other articles of food products, and for the transaction of such other business as is incident thereto. Among its members are some whose business it is to purchase in the country or to receive on consignment from persons in the country some or all the articles which are dealt in on the floor of the exchange, and there are other members whose business it is to buy such articles upon the exchange either for themselves or on commission, and to deliver or ship the same to consumers or distributors throughout the country and in Europe. It is common knowledge that these exchanges encourage and promote honest and fair dealing among their members; that they provide penalties for the violation of their rules in that regard, and that contracts be tween members relating to business on the exchange have the advantage of the sanction provided by the exchange for such purposes. They furnish a meeting place for[518] those engaged in the purchase and sale of commodities or other things to be sold, and in that way they offer facilities for a market for them. Dealings among members so engaged tend to establish the market price of the articles they deal in, and that price is very apt to be the price for the same article when bought or sold outside. The price is arrived at by offers to sell on the one side and to purchase on the other until, by what has frequently been termed the "higgling" of the market, a price is agreed upon and the sales are accomplished. In arriving at this price, of course the great law of the cost of production and also that of supply and demand enter into the problem, and it is upon a consideration of all matters regarded as 362 material that the agreement to buy and sell is made. The prices thus fixed are usually followed when the transaction occurs out side, and the market price means really the exchange price. That an enormous amount of the business of the country which is engaged in the distribution of the commodities grown or produced therein is transacted and takes place through the medium of boards of trade or exchanges cannot be doubted. Nor is there any doubt that these exchanges facilitate transactions of purchase and sale, and it would seem that such facilities or privileges, even though not granted by the government or by a state, ought nevertheless to be recognized as existing facts and to be subject to the judgment of Congress as fit matters for taxation. We will now examine the several objections that have been offered to this statute. It may be stated, of course, that if the tax herein is a direct tax within the meaning of the Constitution, it is void, for there is no apportionment as required by that instru measured in amount by a reference to the value of the thing sold, is in reality upon the privilege or facility used in the transaction or sale. The tax is not a direct tax within the meaning of the Constitution, but is, as already stated, in the nature of a duty or an excise. The amount of such a tax when imposed in a case like this may be increased or diminished by the extent to which the privilege or facility is used, and it is measured in this act by the value of the property transferred by means of using such privilege or facility, but this does not make the tax a direct one. A tax on professional receipts was recognized by the present Chief Justice in delivering the opinion of the court on the first hearing of the income tax case ([Pollock v. Farmers' Loan & T. Co. 157 U. S. 429, 579 [39: 759, 818]), as an excise or duty and therefore indirect, while a tax on[520] the income of personalty he thought might be regarded as direct. And upon the rehearing (158 U. S. 601 [39: 1108]), it was distinctly held that the tax on personal property or on the income thereof was a direct tax. This tax is neither a tax on the personal property sold nor upon the income thereof, although its amount is measured by the value of the property that is sold at the exchange or board of trade. It is also said that the tax is direct because it cannot be added to the price of the thing sold, and therefore ultimately paid by the consumer. In other words, that it is direct because the owner cannot shift the payment of the amount of the tax to someone else. This, however, assumes that the tax is not in the nature of a duty or an excise, but that it is laid directly upon the property sold, which we hold is not the case. It is not laid upon the property at all, nor upon the profits of the sale thereof, nor upon the sale itself considered separate and apart from the place and the circumstances of the sale. ment. It is asserted to be a direct tax, because it is a tax upon the sale of property measured by the value of the thing sold, and such a tax is a direct tax upon the property itself, and therefore subject to the rule of apportionment. Various cases are cited, from Brown v. Maryland, 12 Wheat. 419 [6: 678], down to those involving the validity of the income tax ([Pollock v. Farmers' Loan & T. Co.] 157 U. S. 429 [39: 759]; 158 U. S. 601 [39: 1108]), for the purpose of proving the correctness of this proposition. All the [519]cases involved the question whether the *taxes to which objection was taken amounted practically to a tax on the property. If this tax is not on the property or on the sale thereof, then these cases do not apply. We think the tax is in effect a duty or excise laid upon the privilege, opportunity, or facility offered at boards of trade or exchanges for the transaction of the business mentioned in the act. It is not a tax upon the business itself which is so transacted, but it is a duty upon the facilities made use of and actually employed in the transaction of the business, and separate and apart from the business itself. It is not a tax upon the members of the exchange nor upon membership therein, nor is it a tax upon sales generally. The act limits the tax to sales at any exchange, or board of trade, or other similar place, and its fair meaning is to impose a duty upon those privileges or facilities which are there found and made use of in the sale at such place of any product or merchandise. Whether this facility or privilege is such a thing as can be legally taxed, while leaving untaxed all other sales made outside of such places, will be discussed further on. At present it is enough to say that the tax is not upon the property sold, and cannot on that ground be found to be direct. The tax laid in the same act upon a broker's note or memorandum of sale is a separate tax, although it may have reference to the same transaction. It is a tax on the note or memorandum itself where made by a broker, while in the other case the tax, although We do not see that any material difference exists when the sale is for future delivery. The thing agreed to be sold is the same, whether for immediate or future delivery, and the fact that the sale for future delivery may subsequently be carried out by the actual payment of the difference between the agreed and the market price at the time agreed upon for such delivery does not affect the case. The privilege used is the same whether for immediate or future delivery, and the same rule applies to both. Passing these grounds of objection, it is urged that if this is an indirect tax, it is not uniform throughout the United States as required by the Constitution. Sales at an exchange or board of trade, it is said, are singled out for taxation under this act, although they differ in no substantial respect from sales at other places, and there is therefore no just ground for segregating or classifying such sales from those made elsewhere. A sale at an exchange or board of trade, it is claimed, is not a privilege or facility which can or justly ought to be taxed while all other sales at all other places are exempted from *taxation, and there is no rea-[ ea-[521] sonable ground therefore for the assertion ing of the Constitution. It is said not to be that such a tax is uniform within the mean- | convenience. The market is there, and all This general objection on the ground of want of uniformity is not, in our judgment, In this case there is that uniformity which well founded. Whether the word "uniform" the Constitution requires. The tax or duty is to be understood in what has been termed is uniform throughout the United States, its "geographical" sense, or as meaning and it is uniform, or, in other words, equal, uniformity as to all the taxpayers similarly upon all who avail themselves of the privi situated with regard to the subject-matter of leges or facilities offered at the exchanges, the tax, we think this tax is valid within and it is not necessary in order to be unieither meaning of the term. In our judg-form that the tax should be levied upon all ment a sale at an exchange does form a prop- who make sales of the same kind of things, er basis for a classification which excludes whether at an exchange or elsewhere. all sales made elsewhere from taxation. If it were to be assumed that taxes upon corporate franchises or privileges may be imposed only by the authority that created them, it does not follow that no privilege or facility can be taxed which is not created by the government of a state or by Congress. In order to tax it the privilege or facility must exist in fact, but it is not necessary that it should be created by the government. The question always is, when a classification is made, whether there is any reasonable ground for it, or whether it is only and simply arbitrary, based upon no real distinction and entirely unnatural. Gulf, C. & 8. F. Railroad Company v. Ellis, 165 U. S. 150-155 [41: 666-668]; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 294 [42: 1037, 1043]. If the classification be proper and legal, then there is the requisite uniformity in that respect. A tax upon the privilege of selling property at the exchange and of thus using the facilities there offered in accomplishing the sale differs radically from a tax upon every sale made in any place. The latter tax is really and practically upon property. It takes no notice of any kind of privilege or facility, and the fact of a sale is alone regarded. Although not created by government, this privilege or facility in effecting a sale at an exchange is so distinct and definite in its character, and constitutes so clear and [522]plain a difference from a sale elsewhere, as to create a reasonable and substantial ground for classification and for taxation when similar sales at other places are untaxed. A sale at an exchange differs from a sale made at a man's private office, or on his farm, or by a partnership, because, although the subject-matter of the sale may be the same in each case, there are at an exchange certain advantages in the way of finding a market, obtaining a price, the saving of time, and in the security of payment, and other matters, which are more easily obtained there than at an office or upon a farm. To accomplish a sale at one's farm or house or office might and probably would occupy a great deal of time in finding a customer, bringing him to the spot, and agreeing on a price. All this can be done at an exchange in the very shortest time and at the least in Another objection taken is that Congress taxes only those who make sales and not those who make purchases, and those who sell products or merchandise and not those who sell bonds, stocks, etc. These are discriminations, it is said, which do not follow the rule of uniformity, and hence render the tax void. A purchase occurs whenever a sale is ef fected, and to say that a purchaser at an exchange sale must be taxed for the facilities made use of in making the purchase, or else that the tax on the seller is void, is simply to insist upon doubling the tax. *Nor is it necessary to tax the use of the[525 ̧ privilege under all circumstances in order to render the tax valid upon its use in particular cases. We see no reason why it should be necessary to tax a privilege whenever it is used for any purpose, or else not to tax it at all. It is not in its nature indivisible. A tax upon the privilege when used for one purpose does not require for its validity that the same privilege should also be taxed when used for another and a totally distinct purpose. It may be the same privilege, but when it is used in different cases to accomplish sales of wholly different things, between which there is no relation whatever, one use may be taxed and the other not, and no rule of uniformity will thereby be violated. It is also objected that there is no power in Congress to require a party selling personal property, in the course of commerce within the state, to make a written note or memorandum of the contract, and to punish him by fine and imprisonment for a failure to do so; if the state do not require a memorandum on a sale, Congress cannot in the exercise of the taxing power compel a citizen to make one in order that it may be taxed by the United States. In holding that the tax under consideration is a tax on the privilege used in making sales at an exchange, we thereby hold that it is not a tax upon the memorandum required by the statute upon which the stamp is to be placed. The act does not assume to in any manner interfere with the laws of the state in relation to the contract of sale. The memorandum required does not contain all the essentials of a contract to sell. It need not be signed, and it need not contain the |