was in effect a tax upon exports, and the law was consequently void.1 Congress also is vested with power to regulate commerce. This power is not so far exclusive as to preclude State legislation on matters either local in their nature or operation, or intended to be mere aids to commerce, for which special regulations can more effectually provide; such as harbor pilotage, beacons, buoys, the improvement of navigable waters within the State, and the examination as to their fitness of railroad employees, provided such legislation does not conflict with the regulations made by federal law. Except as to such matters the power of Congress over commerce with foreign nations and among the several States is exclusive. If Congress has made no express regulations with regard to such commerce, its inaction is equivalent to a declaration that it shall be free.3 The States, therefore, can enforce no regulations which make foreign or inter-state commerce subject to the payment of tribute to them. 1 Almy v. California, 24 How. 169. See what is said of this case in Woodruff v. Parham, 8 Wall. 123, 137. And com. pare Jackson Iron Co. v. Auditor-General, 32 Mich. 488. See also Brumagim v. Tillinghast, 18 Cal. 265; Garrison v. Tillinghast, 18 Cal. 404; Ex parte Martin, 7 Nev. 140; Turner v. State, 55 Md. 240; Turner v. Maryland, 107 U. S. 38. In the last two cases a law requiring an inspection of tobacco going out of the State is sustained. The States cannot discriminate in taxation between the productions of different States. Welton v. Missouri, 91 U. S. 275; Tiernan v. Rinker, 102 U. S. 123. 2 Cooley v. Board of Wardens, 12 How. 299; Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; Ex parte MeNiel, 13 Wall. 236; Henderson v. New York, 92 U. S. 259; Wilson v. McNamee, 102 U. S. 572; Mobile v. Kimball, 102 U. S. 691; Escanaba Co. v. Chicago, 107 U. S. 678; Huse v. Glover, 119 U. S. 543; Willamette Iron B. Co. v. Hatch, 125 U. S. 1; Smith v. Alabama, 124 U. S. 465; Nashville, C. & St. L. Ry. Co. v. State, 128 U. S. 96. A statute discriminating as to pilotage in favor of vessels from certain States is bad. Spraigue v. Thompson, 118 U. S. 90. Until Congress acts, State quarantine regulations are valid, and an examination fee may be charged graded by the kind of vessel. Morgan's S. Duties of tonnage the States S. Co. v. Louisiana, 118 U. S. 455. See 8 Welton v. Missouri, 91 U. S. 275; Brown v. Houston, 114 U. S. 622; Walling v. Michigan, 116 U. S. 446; Robbins . Shelby Taxing Dist. 120 U. S. 489; Phila. S. S. Co. v. Pennsylvania, 122 U. S. 326. 4 In Brown v. Maryland, 12 Wheat. 419, 441, it was held that a license fee of fifty dollars, required by the State of an importer before he should be permitted to sell imported goods, was unconstitutional, as coming directly in conflict with the regulations of Congress over commerce. So a tax on the amount of an auctioneer's sales was held inoperative so far as it applied to sales of imported goods made by him in the original packages for the importer. Cook v. Pennsyl vania, 97 U. S. 566. So is any tax which discriminates against imported goods. Tiernan v. Rinker, 102 U. S. 123. After property brought from another State has become part of the property in a State, it may be taxed like other property there: Brown v. Houston, 114 U. S. 622; but not, if it is taxed by reason of its being so brought. Welton v. Missouri, 91 U. S. 275. See Phila. S. S. Co. v. Pennsylvania, 122 U. S. 326. A tax upon receipts from the transportation of goods from one State to another by rail is bad. Case of State Freight Tax, 15 Wall. 232; are also forbidden to lay.1 The meaning of this seems to be that vessels must not be taxed as vehicles of commerce, according to capacity; but it is admitted they may be taxed like other property.3 It is also believed that that provision in the Constitution of the United States, which declares that "the citizens of each State Fargo v. Michigan, 121 U. S. 230. So is one upon the gross receipts from transportation by sea between different States, or to and from foreign countries: Phila. S. S. Co. v. Pennsylvania, 122 U. S. 326; impairing the force of Case of Tax on Railway Gross Receipts, 15 Wall. 284; one upon gross receipts of car companies derived from inter-state business; State v. Woodruff, &c. Co., 114 Ind. 155. See Central R. R. Co. v. Board of Assessors, 49 N. J. L. 1. So is a privilege tax upon cars used as instruments of inter-state commerce. Pickard v. Pullman &c. Co., 117 U. S. 34. So is the tax upon the capital stock of a foreign ferry corpora tion engaged in such commerce, which lands and receives passengers and freight within the State. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196. So is one on all telegraph messages sent out of a State. Telegraph Co. v. Texas, 105 U. S. 460. See Ratterman v. W. U. Tel. Co., 127 U. S. 411. A State may not exact, as a condition of doing business, a license from a company, a large part of whose business is the transmission of inter-state telegrams. Leloup v. Port of Mobile, 127 U. S. 640. That is not domestic commerce which in going between ports of the same State passes more than a marine league from shore. Pacific Coast S. S. Co. v. Board R. R. Com'rs, 18 Fed. Rep. 10. Compare Com. v. Lehigh Valley R. R. Co., 129 Pa. St. 308. For further discussion of this subject, see New York v. Miln, 11 Pet. 102; License Cases, 5 How. 504; Lin Sing v. Washburn, 20 Cal. 534; Erie Railway Co. v. New Jersey, 31 N. J. 531, reversing same case in 30 N. J.; Pennsylvania R. R. Co. v. Commonwealth, 3 Grant, 128; Hinson v. Lott, 40 Ala. 123; Commonwealth v. Erie R. R., 62 Pa. St. 286; Osborne v. Mobile, 44 Ala. 493; s. c. in error, 16 Wall. 479; State v. Philadelphia, &c. R. R. Co., 45 Md. 361; Walcott v. People, 17 Mich. 68. In Crandall v. Nevada, 6 Wall. 35, it was held that a State law im posing a tax of one dollar on each person leaving the State by public conveyance was not void as coming in conflict with the control of Congress over commerce, though set aside on other grounds. Logs belonging to a non-resident are liable to be taxed though intended for transportation to another State, and partially prepared for it by being deposited at the place of shipment. Coe v. Errol, 116 U. S. 517. See Com'rs Brown Co. v. Standard Oil Co., 103 Ind. 302. On the subject of inter-state commerce, see further, pp. 717, 720-725, 737, post. Cooley on Taxation, 61-64. 1 Const. of U. S. art. 1, § 10, cl. 2. 2 Cannon v. New Orleans, 20 Wall. 577; Huse v. Glover, 119 U. S. 543. See Steamship Co. v. Port Wardens, 6 Wall. 31; State Tonnage Tax Cases, 12 Wall. 204; Inman Steamship Co. v. Tinker, 94 U. S. 238; Lott v. Morgan, 41 Ala. 246; Johnson v. Drummond, 20 Gratt. 419; State v. Charleston, 4 Rich. 286; Johnson v. Loper, 46 N. J. L. 321. A license tax upon the business of running a ferry between two States is not a tonnage tax. Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365. But such tax upon running towboats between New Orleans and the Gulf is a regulation of commerce. Moran v. New Orleans, 112 U. S. 69. Tolls based on tonnage may be charged for the use of improved waterways. Huse v. Glover, 119 U. S. 543. Port dues may not be laid unless services are rendered. Harbor Com'rs v. Pashley, 19 S. C. 315; Webb v. Dunn, 18 Fla. 721. 8 See above cases. Also Peete v. Morgan, 19 Wall. 581; Transportation Co. v. Wheeling, 99 U. S. 273. Wharfage charges are not forbidden by the above clause of the Constitution: Marshall v. Vicksburg, 15 Wall. 146; Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 U. S. 423; Vicksburg v. Tobin, 100 U. S. 430; and they may be measured by tonnage. Packet Co. v. Catlettsburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 691. shall be entitled to all the privileges and immunities of the citizens of the several States," 1 will preclude any State from imposing upon the property which citizens of other States may own, or the business which they may carry on within its limits, any higher burdens by way of taxation than are imposed upon corresponding property or business of its own citizens. This is the express decision of the Supreme Court of Alabama,2 following in this particular the dictum of an eminent federal judge at an early day,3 and the same doctrine has been recently affirmed by the federal Supreme Court. As the States are forbidden to pass any laws impairing the obligation of contracts, they are of course precluded from levying any taxes which would have that effect. Therefore, as was shown in a previous chapter, if the State by any valid contract has obligated itself not to tax particular property, or not to tax beyond a certain rate, a tax in disregard of the obligation is void. It is also held that to tax in one State contracts owned 1 Art. 4, § 2. A license tax may not be imposed upon one who contracts with or induces laborers to leave a State. Joseph v. Randolph, 71 Ala. 499. 2 Wiley v. Parmer, 14 Ala. 627. & Washington, J., in Corfield v. Coryell, 4 Wash. C. C. 371, 380. And see Campbell v. Morris, 3 H. & McH. 554; Ward v. Morris, 4 H. & McH. 340; and other cases cited, ante, p. 24, note. See also Oliver v. Washington Mills, 11 Allen, 268. 4 Ward v. Maryland, 12 Wall. 419, 430; Case of State Tax on Foreign Held Bonds, 15 Wall. 300. Compare Machine Co. v. Gage, 100 U. S. 676. A State cannot impose, for the privilege of doing business within its limits, a license tax upon travelling agents from other States, offering for sale or selling merchandise, when none is imposed upon its own people. McGuire v. Parker, 32 La. Ann. 832. Or a heavier license tax upon non-residents than upon residents carrying on the same business. Ward v. Maryland, 12 Wall. 418; State v. Wiggin, 64 N. H. 508. Nor a license tax upon those dealing in goods, wares, and merchandise not the product of the State, while imposing none on similar traders selling the products of the State. Welton v. Missouri, 91 U. S. 275; Walling v. Michigan, 116 U. S. 446; Ex parte Thomas, 71 Cal. 204. See Graffty v. Rushville, 107 Ind. 502; Marshallstown v. Blum, 58 Iowa, 184; Pacific Junction v. Dyer, 64 Iowa, 38; State v. Pratt, 59 Vt. 502. Compare People v. Lyng, 42 N. W. Rep. 139 (Mich.); re- in another impairs their obligation, even though they are made and are payable in the State imposing the tax, and are secured by mortgage in that State.1 Having thus indicated the extent of the taxing power, it is necessary to add that certain elements are essential in all taxation, and that it will not follow as of course, because the power is so vast, that everything which may be done under pretence of its exercise will leave the citizen without redress, even though there be no conflict with express constitutional inhibitions. Everything that may be done under the name of taxation is not necessarily a tax; and it may happen that an oppressive burden imposed by the government, when it comes to be carefully scrutinized, will prove, instead of a tax, to be an unlawful confiscation of property, unwarranted by any principle of constitutional government. In the first place, taxation having for its only legitimate object the raising of money for public purposes and the proper needs of 1 State Tax on Foreign Held Bonds, 15 Wall. 300; Street Railroad Co. v. Morrow, 87 Tenn. 406. See also Mayor of Baltimore v. Hussey, 67 Md. 112; Railroad Co. v. Com'rs, 91 N. C. 454; Railroad Co. v. Jackson, 7 Wall. 262; Oliver v. Washington Mills, 11 Allen, 268. The stock of a foreign corporation is not taxable, though its property is used within the State by its licensees. Com. v. Amer Bell Tel. Co., 129 Pa. St. 217; People v. Amer. Bell Tel. Co., 22 N. E. Rep. 1057 (N. Y.). Compare Catlin v. Hull, 21 Vt. 152; Jenkins v. Charleston, 5 S. C. 393; Mumford v. Sewall, 11 Oreg. 67. A State may tax its citizen upon the public debt of another State held by him, though exempt from taxes in such State. Bonaparte v. Tax Court, 104 U. S. 592. A foreign corpora: tion having a railroad and doing business in a State, may, as a condition of doing business, be required, like a domestic corporation, to collect a tax upon its loans held by residents of the State. Com. v. New York, L. E. & W. R. R. Co., 129 Pa. St. 463. 2 A State may, if it see fit, tax the property owned, held, and used by itself or its municipalities for public purposes; but this would so obviously be unwise and impolitic that the intent to do so is never assumed, but public property is always, by implication of law, exempt from the operation of the general terms of tax laws. People v. Salomon, 51 Ill. 37; Trustees of Industrial University v. Champaign Co., 76 Ill. 184; Directors of Poor v. School Directors, 42 Pa. St. 21; People v. Austin, 47 Cal. 353; People v. Doe, 36 Cal. 220, Wayland v. County Com'rs, 4 Gray, 500; Worcester Co. v. Worcester, 116 Mass. 193; State v. Gaff ney, 34 N. J. 133; Camden v. Camden Village Corp., 77 Me. 530; Erie Co. v. Erie, 113 Pa. St. 360. But city waterworks may be taxed for county purposes. Erie Co. v. Com'rs Water-Works, Id. 368. The same rule applies to special city assessments. Green v. Hotaling, 44 N. J. L. 847; Polk Co. Savings Bank v. State, 69 Iowa, 24; Harris Co. v. Boyd, 70 Tex. 237. But see contra, Adams Co. v. Quincy, 22 N. E. Rep. 624 (Ill.). And the exemption extends to lands acquired by a city outside its limits to supply itself with water. West Hartford v. Water Com'rs, 44 Conn. 360; Rochester v. Rush, 80 N. Y. 302. So of a ferry landing in Brooklyn owned by New York city, to which the ferry privilege belongs. People v. Assessors, 111 N. Y. 505. See Black v. Sherwood, 84 Va. 906. But not so of land taken by a city in payment of the defalcation of an officer. People v. Chicago, 124 Ill. 636. government, the exaction of moneys from the citizens for other purposes is not a proper exercise of this power, and must therefore be unauthorized. In this place, however, we do not use the word public in any narrow and restricted sense, nor do we mean to be understood that whenever the legislature shall overstep the legitimate bounds of their authority, the case will be such that the courts can interfere to arrest their action. There are many cases of unconstitutional action by the representatives of the people which can be reached only through the ballot-box; and there are other cases where the line of distinction between that which is allowable and that which is not is so faint and shadowy that the decision of the legislature must be accepted as final, even though the judicial opinion might be different. But there are still other cases where it is entirely possible for the legislature so clearly to exceed the bounds of due authority that we cannot doubt the right of the courts to interfere and check what can only be looked upon as ruthless extortion, provided the nature of the case is such that judicial process can afford relief. An unlimited power to make any and every thing lawful which the legislature might see fit to call taxation, would be, when plainly stated, an unlimited power to plunder the citizen.1 It must always be conceded that the proper authority to determine what should and what should not constitute a public burden is the legislative department of the State. This is not only true for the State at large, but it is true also in respect to each municipality or political division of the State; these inferior corporate existences having only such authority in this regard as the legislature shall confer upon them.2 And in determining this question, the legislature cannot be held to any narrow or technical rule. Not only are certain expenditures absolutely essential to the continued existence of the government and the performance 1 Tyson v. School Directors, 51 Pa. St. 9; Morford v. Unger, 8 Iowa, 82; Talbot v. Hudson, 16 Gray, 417; Hansen v. Vernon, 27 Iowa, 28; Allen v. Jay, 60 Me. 124; s. c. 11 Am. Rep. 185; Ferguson v. Landram, 5 Bush, 230; People v. Township Board of Salem, 20 Mich. 452; Washington Avenue, 69 Pa. St. 352; s. c. 8 Am. Rep. 255. "It is the clear right of every citizen to insist that no unlawful or unauthorized exaction shall be made upon him under the guise of taxation. If any such illegal encroachment is attempted, he can always invoke the aid of the judicial tribunals for his protection, and prevent his money or other property from being taken and appropriated for a purpose and in a manner not authorized by the Constitution and laws." Per Bigelow, Ch. J. in Freeland v. Hastings, 10 Allen, 570, 575. See Hooper v. Emery, 14 Me. 375; People v. Sup'rs of Saginaw, 26 Mich. 22; Weismer v. Douglas, 64 N. Y. 91; s. c. 21 Am. Rep. 586. 2 Litchfield v. Vernon, 41 N. Y. 123. A law may determine absolutely the amount of tax to be raised for a local improvement, and the property upon which it is to be apportioned. Spencer v. Merchant, 100 N. Y. 585; affirmed, 125 U. S. 345. See ante, p. 283, and cases cited in note 1, p. 601. |