No. 232.
Mr. Foster
to Mr. Evarts.
Mexico, July 18, 1877. (Received August 10.)
Sir: The federal supreme court of Mexico on the 6th instant rendered an important decision, involving, the power of the executive to levy a tax by virtue of the “extraordinary faculties” which it has been the practice of the federal Congress so often to confer upon the executive.
The case which occasioned the recent decision arose from the enforcement of a tax of 1 per cent, upon capital, levied July 19, 1876, by a decree of President Lerdo, by virtue of the “extraordinary faculties” conferred upon him by the Congress of the union.
A Mexican citizen, resident in this capital, applied to the federal court of the district for “amparo” or protection against the enforcement of the tax, which was refused by that court October 30, 1876. The case was appealed to the supreme court, but the fall of the Lerdo government suspended proceedings therein until the recent reorganization of the supreme court under the administration of General Diaz. The present supreme court has reversed the action of the district court of October last, and has decided that the tax levied by virtue of President Lerdo’s decree of July 19, 1876, is unconstitutional, and that its collection cannot be enforced.
The supreme court bases its decision on the fiftieth article of the Mexican constitution, which provides that “the supreme power of the federation is divided for its exercise into legislative, executive, and judicial functions; two or more of these powers can never be united in the same person, nor the legislative power be deposited in one individual;” and on the seventh clause of the seventy-second article, which confers upon the Congress of the union the power “of approving the federal estimates of expenditures, which shall be annually presented by the executive, and of imposing the taxes necessary therefor.” Under these provisions of the constitution the court holds that each one of the three federal powers is independent of and cannot exercise the functions or faculties of the others; that the power of imposing the taxes necessary for the federal expenditures is exclusively conferred upon the legislative department of the government; and that Congress cannot delegate to or confer this power upon the executive.
The court also takes the more extended position, that the faculty conferred by the constitution upon the legislative power of making the laws cannot be delegated to any other body or authority. In the language of the decision in question, “where the sovereign power of the state [Page 424] has deposited authority, there it must remain; and only by the constitutional agents should the laws be made.” This decision reverses the previous rulings of the federal courts, and is in opposition to the past practices of the executive, and if observed in the future administration of the government, it will have a tendency to remedy some of the most prominent evils which have grown into an established custom in ail revolutionary periods of Mexico.
Almost all the unusual and heavy taxation, termed “extraordinary contributions,” has been levied not by legislative but by executive authority, by virtue of the “ample faculties” conferred by the former upon the latter at the commencement or during the progress of a revolution. Nor has the practice been confined to the federal executive, but it has been followed in all the states of the republic. Neither have the executives of the union and of the states confined the exercise of their “extraordinary faculties” to the imposition of taxes, as a large part of the past and existing laws of the country have been created by executive decrees alone.
In my No. 293, of May 25, 1S75, in noticing the application of President Lerdo to congress to have conferred upon the executive “extraordinary faculties,” I expressed regret that his administration, which up to that time had shown a greater regard for the observances of the constitution than its predecessors, should deem it necessary to return to the revolutionary practices of the past, and I manifested serious doubts as to the wisdom of the policy. The subsequent history of the country has shown that the measure was a source of weakness rather than of strength for his administration, as the possession of “extraordinary faculties” led the executive to the exercise of acts which undoubtedly hastened the overthrow of his government.
If the recent decision of the supreme court is hereafter followed as an unalterable principle of government, it will prove one of the most worthy events of the administration of General Diaz, as it will be preventive of some of the most onerous and arbitrary practices of Mexican revolutions. It is an interesting fact, in this connection, that our minister plenipotentiary in Mexico, the Hon. Thomas Corwin, in answer to the inquiry of certain American residents, gave a written opinion in 1861 against the legality of an “extraordinary contribution” levied by President Juarez in exercise of “ample faculties,” which opinion assumed the same line of argument as that followed by the recent decision of the court; but the Mexican courts having decided the tax valid, Mr. Corwin was induced to withdraw his opposition on the ground that the question was one exclusively for the supreme judicial authority to determine.
I am, &c.,