figures in italics being those which were written by Tankersley, or by his authority, in the blank spaces: "Capital stock of a corporation: All the shares to be appraised in bulk, at a fair marketable value, on the first day of July, 1884, and deduct the assessed value of all real estate owned by said corporation, fifty thousand shares, par value $10 each, subscribed and paid for September 2, 1884, fair marketable value on January 1, 1885 and now $5 per share-$250,000." It appears that the entry on the assessment books of the district authorities was altered from time to time. In January, 1885, the total assessment was stated at $500,000 and the amount of tax at $7,500. That was changed after the 22d of that month, by reducing the assessment to $250,000; and it then read "1, from September 1, 1884, on $250,000-$1,250; 2, from January 1, 1885, on $250,000-$1,875." And the latter assessment was the basis of the bill finally presented to the Company. Under circumstances which it is insisted on the part of the petitioner amounted to duress, the Company paid the $1,250, which was not one half of the tax for the year; the amount charged for what was called the other half being $1,875. The contention of the Company is that the yearly assessments must be closed according to law, on the first day of July of each year, and that taxes on property generally are to be computed as of this last day until the 30th of June of the next year. It insists that it possessed no property on the 30th of June or the first of July, 1884; that although it had published to the world on the 23d of June a notice that it had filed its certificate of incorporation, yet it was not until the second of September, after the close of the previous assessment year, that any steps whatever were taken towards the realization of its promise; and it was not until the 10th of that month that it could properly be said to have completed even the partial subscription then made. If this is a correct statement of the facts, then the District Government, in our opinion, had no authority whatever to levy this tax. There are only two cases recognized by the law governing the assessment of taxes, in which it is permissible for the district authorities to add to the assessment after it has been closed on the 30th of June. Those exceptional cases are specified in section 12 of chapter 117 of the Act approved March 3, 1877, which although it appears from its general language to be applicable only to the current year, yet contains this provision: "Sec. 18. That this Act shall remain in force as the tax law of the District of Columbia for each subsequent year after June 30, 1878, until repealed." This Act was therefore in full force in 1885. The first exception thus spoken of appears in the twelfth section, as follows: "Said assessors shall, before the first day of October, 1877, under the direction of the superintendent of assessments and taxes of said District, assess the value of all the real property not embraced in the assessment of the fiscal year ending June 30, 1877, inclusive of all buildings erected or roofed, improved or enlarged, and not heretofore taxed," etc. And the other exceptional provision is this: "Where a person coming into the District subsequent to June 30, 1877, engages in trade of a permanent character, he shall pay a tax proportioned to the fraction of the tax year ending June 30, 1878, during which he conducted the trade," etc. Neither of those provisions describes the case of an assessment of the capital stock of a corporation, which is specially provided for in section 11 of the Act; and it was properly conceded in the argument, on the part of the District, that neither of the two exceptional cases in which the assessors were authorized to add to the closed assessment could be held to include the case at bar. But the reply of the District is that although it may be true the stockholders did not subscribe nor pay anything on their subscriptions until the second of September, or consummate anything in the way of practical organization until the 10th of that month, yet as they had filed their certificate of organization on the 23d of June, and on the 10th of September had published the advertisement, announcing that they had organized for business and that the capital of the Company was to be $500,000; had named the officers and thus held themselves out as an existing corporation-it resulted that the Company had rendered itself liable to assessment for the year 1884-5; that the incorporation having taken place before the first of July, 1884, they became liable to pay on their capital, whenever during the year they should make good their programme or scheme of business, notwithstanding the money might not be subscribed and paid until after the first of July. We do not think this position can be sustained. The publication of the 23d of June was merely a project or scheme that might never be realized; probably a large proportion of such schemes, quite as fair of promise, perish and are never heard of again. Non constat that the $500,000 or $5 towards that amount, would ever be subscribed; and to say that the right to make an assessment could grow into being, from the mere fact of the incorporation, on the chance of subscriptions being made, seems to us to place upon too uncertain a basis the exercise of the sovereign power of taxation which always requires a grant to sustain it. The case does not differ materially from that of a person living in another city until after the first of July and then removing to Washington. It is to be supposed that there has already been levied, by the authorities where he had lived, the usual tax on whatever property he had there in the way of stock or other effects, and that he will have been assessed at that place, for the whole year and not for a fractional part only. He removes here, we will say, in the latter part of the year, bringing his personal effects, to make this city his home. To tax him here and make him pay here upon the same property upon which he has already paid a full year's tax at his former home would be most unjust, unless his case should fall within one of the two exceptions already referred to. For these reasons we think there was no authority for the imposition of this tax. It is unnecessary to consider the further argument on the part of the District, that the Company paid part of this tax voluntarily. The consent of the taxpayer could not confer on the Corporation the sovereign power of taxation, where it had not been given by law. Nor do we intend to decide, on the other hand, that if the Company paid that part of the charge under circumstances of duress, as it insists, it can recover from the District the amount thus paid. We simply hold, for the reason given, that the court below was correct in its decision, and that the entire proceedings ought to be quashed; and it is so ordered. "Third, Commericial Agents shall pay $250. Every person residing in the District of Columbia, whose business it is, as agent for nonresident manufacturers or wholesale dealers, to offer for sale merchandise, shall be regarded as a commercial agent." Acts, Sess. 1, p. 93. After his conviction the petitioner sued out this writ of habeas corpus, the hearing upon which was certified by the justice holding the criminal court to the general term, to be there heard in the first instance. legislation; that it could not legislate on general subjects; and further that Congress could not give it power to do so. Roach v. Van Riswick and Cooper v. Dist. Col. 4 MacArt. 171, 250; Dist. Col. v. Waggaman, 1 Cent. Rep. 823, 4 Mackey, 333; § 93 R. S. D. C; Dunphy v. Kleinschmidt, 11 Wall. 610 (78 U. S. bk. 20, L. ed. 223). It is certain, in view of the late decision of the United States Supreme Court that such a law is a regulation of interstate commerce, that Congress could not delegate to a mere municipal body its constitutional power over a great national interstate question. As Congress could not clothe the Legislative the License Law was utterly void; and that Assembly with this power, its action in passing law cannot gain any validity from the tacit acquiescence of Congress. The rule of "ratification" is laid down in the 24, L. ed. 1098). case of Mattingly v. Dist. Col. 97 U. S. 687 (Bk. It is contended that the fact that Congress has amended this law by repealing some of its provisions has given it the same effect as if it had been passed by Congress itself. But the Legislative Assembly by the very law that the Legislature of the State could not. Can it be successfully contended that if, in disobedience of the restriction thus laid upon it, it attempted to exercise the highest constitutional function of Congress itself, the silence of Congress, or the repeal of some purely municipal regulations, is to be construed as a recognition and validation of this assumption of power? Roach v. Van Riswick, 4 MacArt. 171. But the recent decision of the Supreme Court of the United States in the Tennessee case has conclusively settled that this law is, in effect, a regulation of commerce between the States; for in this connection, as in the case of the constitutional provision as to direct taxes, the District of Columbia and the Territories must be included. Loughborough v. Blake, 5 Wheat. 319 (18 U. S. bk. 5, L. ed. 98). At least it is an attempt to regulate commerce between the District of Columbia, and (in the case at bar) the State of Maryland. It reaches out and affects the interests of that State, and is in effect an exercise of the national constitutional power of Congress to regulate commerce, and not of the exclusive power of local legislation over the District. Messrs. Francis M. Darby, Francis Miller and Guion Miller, for petitioner: The validity of this license was in question in Humason's Case, 2 MacArt. 158. It was contended that the law was illegal, as to commercial agents, because it was in effect an attempt to regulate commerce, and therefore, un- If it is an exercise of this national constituconstitutional; but the court held the contrary. tional power, it must be subject to all the reThis decision, so far as it declares that the Act strictions which the Constitution has imposed is not a regulation of commerce, has been over-upon Congress. It must therefore be uniform. ruled by the Supreme Court of the United States in the case of Robbins v. Taxing District of Shelby Co. 20 U. S. 489 (Bk. 30, L. ed. 694); S. C. 1 Interstate Com. Rep. 45. This would seem to be conclusive of this case. But it is claimed that this law was.passed by the Legislative Assembly, by the authority of Congress, which has exclusive legislative power over this District. Cohens v. Va. 6 Wheat. 441 (19 U. S. bk. 5, L. ed. 300). But this court has decided that the Legislative Assembly had only municipal power of Either this regulation of commerce must be impartially applied to every man who engages in the business of a drummer, or it cannot be enforced against anyone. The language of the supreme court on this subject, emphatic and oft repeated as it has been, is but an expansion of that of the Constitution itself. Article 1, section 8, clause 1, says: “All duties, imposts and excises shall be uniform throughout the United States." Chief Justice Marshall, 5 Wheat. 319 (18 U. S. bk. 5, L. ed. 98), says: "The power, then, to lay and collect duties, imposts and excises, may be exercised and must be exercised throughout the United States. Does this term designate the whole or any particular portion of the American Empire? Certainly this question can admit of but one answer. It is the name given to our great Republic, which is composed of States and Territories. The District of Columbia, or the territory west of the Missouri, is not less within the United States than Maryland or Pennsylvania; and it is not less necessary, on the principles of our Constitution, that uniformity in the imposition of imposts, duties and excises, should be observed in one than in the other. Since, then, the power to lay and collect taxes, *** is obviously coextensive with the power to lay and collect duties, imposts and excises, and since the latter extends throughout the United States, it follows that the power to impose direct taxes also extends throughout the United States." Clause 6 of the same section provides that "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another." See Passenger Cases, 7 How. 405 (48 U. S. bk. 12, L. ed. 753); Gibbons v. Ogden, 9 Wheat. 191 (22 U. S. bk. 6, L. ed. 69). Now if this License Law does give or may give the City of Baltimore any preference over the City of Washington, or the contrary, it is in violation of this clause of the Constitution. We contend therefore that even if Congress had formally passed this Law and it had been regularly approved by the President, with all the forms prescribed for the enactment of laws of the United States, it would still be void, because of its violation of the fundamental requirement of all such legislation, to wit: that of uniformity throughout the limits of the country; Exchange Bank of Columbus v. Hines, 3 Ohio St. 1; Cited in Gilman v. Sheboygan, 2 Black, 510 (67 U. S. bk. 17, L. ed. 305); for this license tax is a tax on the articles to be sold by the drummer. Brown v. Md. 12 Wheat. 444, 448 (25 U. S. bk. 6, L. ed. 687, 688); Cook v. Pa. 97 U. S. 566 (Bk. 24, L. ed. 1015); License Tax Cases, 5 Wall. 462 (72 U. S. bk. 18, L. ed. 497); Welton v. Mo. 91 U. S. 275 (Bk. 23, L. ed. 347). Judge Tucker thought that "duties" as used in the Constitution, "were probably intended to comprehend every species of tax or contribution not included in the ordinary terms 'taxes and excises'." Cited in Pacific Ins. Co. v. Soule, 7 Wall. 433 (74 U. S. bk. 19, L. ed. 98). Cooley, Const. Law, p. 494. Direct taxes must be laid by the rule of apportionment; all others by the rule of uniformity. Veazie Bank v. Fenno, 8 Wall. 533 (75 U. S. bk. 19, L. ed. 482); Scholey v. Rew, 23 Wall. 331 (90 U. S. bk. 23, L. ed. 99). In Ward v. Md. 12 Wall. 418 (79 U. S. bk. 20, L. ed. 449), Mr. Justice Bradley foreshadows the recent decision in the Tennessee case. "It will not be denied that that portion of commerce with foreign countries and between the States which consists of the transportation and exchange of commodities is of national importance, and admits and requires uniformity of regulation." Welton v. Mo. 91 U. S. 275 (Bk. 23, L. ed. 347), cited and approved in Tiernan v. Rinker, 102 U. S. 128 (Bk. 26, L. ed. 103). In respect of commerce between the States, which consists in the transportation, purchase, sale and exchange of commodities, there can of necessity be only one system or plan of regulations; and that Čongress alone can prescribe. Mobile Co. v. Kimball, 102 U. S. 691 (Bk. 26, L. ed. 238); Cooley v. Board of Wardens, 12 How. 299 (53 U. S. bk. 13, L. ed. 996); Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 (Bk. 29, L. ed. 158); Brown v. Houston, 114 U. S. 622 (Bk. 29, L. ed. 257); Walling v. Mich. 116 U. S. 446 (Bk. 29, L. ed. 691); Pickard v. Pullman etc. Car Co. 117 U. S. 34 (Bk. 29, L. ed. 785). But suppose this tax is levied by Congress as the exclusive legislative power in the District of Columbia for the support of the government of the District of Columbia, it is still a tax on the commerce of the States with the District of Columbia, and subjects that commerce to burdens to support the local expenses of the District of Columbia. Can Congress compel the States to do this? Cooley, Const. Law, p. 499. We submit that the recent decision of the supreme court is universal in its operation and cuts up by the roots all local regulation of commerce; that it declares that requiring a license for drummers is a regulation of commerce; that therefore such license can only be required by Congress; and that Congress can only exercise its power to regulate commerce by the exercise of its constitutional powers so to do, under the constitutional restriction that the operation of its laws shall be uniform throughout the limits of the United States. Mr. Henry E. Davis, for the District: I. The law is, in effect, the law of Congress. The power of the Legislative Assembly, which emanated from Congress, extended "to all rightful subjects of legislation within the District, consistent with the Constitution of the United States *** subject to all the restrictions and limitations imposed upon States by the tenth section of the first article of the Constitution of the United States;" and all Acts of the Assembly were "subject to repeal or modification by the Congress of the United States." R. S. D. C. §§ 49, 50. The extent of the power thus conferred upon the Legislative Assembly was considered by this court in Roach v. Van Riswick and Cooper v. Dist. Col. 4 MacArt. 171, 250; and in Dist. Col. v. Waggaman, 1 Cent. Rep. 823, 4 Mackey, 328. In the last mentioned case the very License Act under consideration was held as within the power; and in Dist. Col. v. Oyster, 1 Cent. Rep. 84, 4 Mackey, 285, the Act was administered by this court without any question or expression of doubt as to its being properly within the power granted and properly grantable by Congress to the Assembly. The Act having, then, been within the power of the Assembly to pass, it was in full force and virtue from its passage, unless repealed or modified by Congress. As was said by this court in Roach v. Van Riswick (4 MacArt. 172, 173), the “reluctance on the part of Bench and Bar to recognize legislation of the late government as valid, * * * has sometimes sought its excuse in the want of positive confirmation by Congress of the legis- | 45, closes the door to any possible contention lation in question. This, however, is a very on that head. 3. The question, then, becomes, Has Congress power under the Constitution to pass such a law? If not, it must be either because such power is not granted, or is denied, to Congress by the Constitution. unsatisfactory foundation for it. The organic 2. It is equally certain that, as above pointed Act, *** which established the District Gov-out, the law is, in effect, an enactment by Conernment, nowhere contains an intimation that gress. the Acts of the new government are to be inoperative until or unless confirmed by Congress; but, on the contrary, by the strongest imputation, excludes such idea. The fiftieth section [of the revision] declares that all Acts of the Legislative Assembly shall at all times be subject to repeal or modification by the Congress of the United States. Until repealed or modified, the clear implication is that they are to operate proprio vigore. * ** It is plain to us that as far as Congress could confer the power of original and independent legislation, needing no confirmation, but complete and operative in itself, it has done so by the Act in question." The effect of this is that the legislation in question, being that of a duly authorized and qualified agent of Congress in the Government of the District of Columbia, is that of Congress itself. And if that be not so, we have a distinct adoption by Congress of this legislation in the several Acts of February 17, 1873 (17 Stat. at L. 464), July 12, 1876 (§ 19, 19 Stat. at L. 83), and January 28, 1887, in part amending and in part repealing the Act of the Assembly; whereby, by the clearest implication, the rest of the Act is adopted. II. The constitutional question. The power is undoubtedly granted in terms by article I, § 8, clause 17, whereby Congress is given power to exercise exclusive legislation in all cases whatsover over the District of Columbia. As was said by Marshall, Ch. J., in Loughborough v. Blake, 5 Wheat. 324 (18 U. S. bk. 5, L. ed. 100); "On the extent of these terms, according to the common understanding of mankind, there can be no difference of opinion." But it is contended that this broad grant is limited by the restrictions which the Constitution has imposed upon Congress. Granting this, what restriction of the Constitution upon the power of Congress affects the question under consideration? Petitioner's counsel cite but two such restrictions as of supposed applicability-that requiring uniformity of duties, imposts and excises, and that forbidding preference to the ports of one State over another; both of which have been noticed above. by the Constitution, which "are expressed in plain terms," and none of which applies to the case in hand. What limitations, then, exist on the power of Congress in regulating commerce? SeemThe question raised by the petitioner is sup-ingly none, except those distinctly prescribed posed to find support in article I, § 8 of the Constitution of the United States, which provides that "The Congress shall have power to lay and collect taxes, duties, imposts, and excises * * * but all duties, imposts, and excises shall be uniform throughout the United States" (clause 1), and that "The Congress shall have power *** to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes " (clause 3); and in section 9 of the same article, which declares that "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear or pay duties in another" (clause 6). The question thus recurs: Does the regulation of commerce complained of emanate from Congress? That it does is shown above. “Although Congress cannot enable a State to legislate, Congress may adopt the provisions of a State on any given subject." A fortiori may it adopt the legislation of its own agency, in the exercise of one of its undoubted powers. The adoption by Congress of any given legislation "gives it the same validity as if its provisions had been specifically made by Congress." Gibbons v. Ogden, 9 Wheat. 196, 207 (22 U. S. bk. 6, L. ed. 70, 73). tion under consideration. As to the first of these provisions, it is enough 4. The recent decision of the Supreme Court to say that the license tax in question is not a of the United States (Robbins v. Taxing Disduty, an impost, or an excise, and is not, there-trict, supra), in reality does not affect the quesfore, within that provision requiring uniformity throughout the United States. As to the last (9, clause 6), the license law for the District of Columbia gives no preference to the ports of any State, or even of the District, over those of any other State; and it is not easily conceived how that clause can be thought to have any relevancy to the subject in hand. A question seems, however, to be presented by the remaining of the three clauses above enumerated, viz.: whether, as a regulation of commerce, the license law for the District is invalid, as obnoxious to the Constitution of the United States? 1. It is not doubted that the law regulates commerce, in the sense of the Constitution. The opinion of the Supreme Court of the United States in the recent case of Robbins v. Taxing District of Shelby Co. 120 U. S. 489 (Bk. 30, L. ed. 694); S. C. 1 Interstate Com. Rep. In that case it was held only that a given law of the State of Tennessee was invalid, as dealing with the subject of commerce, which, by the Constitution, was committed to Congress. The power of Congress, its extent and its limitations in the premises, were not under consideration. 5. The petitioner has no right to complain of the District License Law. He is not a member of a foreign Nation, nor of an Indian Tribe, and the law does not affect commerce "among the several States." The District of Columbia is not a State, in the meaning of the Constitution. Hepburn v. Ellzey, 2 Cranch, 445 (6 U. S. bk. 2, L. ed. 332); New Orleans v. Winter, 1 Wheat. 91 (14 U. S. bk. 4, L. ed. 44); Scott v. Jones, 5 How. 377 (46 U. S. bk. 12, L. ed. 197); Barney v. Baltimore, 6 Wall. 287 (73 U. S. bk. 18, L. ed. 827); Baltimore etc. R. R. Co. v. Har-| ris, 12 Wall. 86 (79 U. S. bk. 20, L. ed. 360). In respect to regulating commerce, there is in the Constitution no prohibition upon either Congress or any State to discriminate for or against the District, as between it and such or any State. "The sole restraints" against abuse in this respect are those mentioned by Chief Justice Marshall in Gibbons v. Ogden; and disregard of those restraints can only be reached by counter legislation; they cannot be affected by any action of the judiciary. Mr. Justice Merrick delivered the opinion of the court: I have been assigned to announce the opinion of the court in the case of William J. Hennick, certified to this court, from the criminal court. The petitioner, as it appears by his petition, was convicted before the police court upon an information against him as agent, or drummer, so-called. The informaa commercial tion states: was decided that a state law imposing a tax In the case of Robbins v. Shelby County it upon commercial agents who solicited contracts for sale of property owned by citizens of another State was beyond the power of the State to enact or enforce; that it was in contravention of the constitutional provision that Congress should have the exclusive power of regulating commerce between the States, a tax upon commercial agents or drummers of one State soliciting business within another State being a tax upon interstate commerce. not cover the whole proposition, that it was It was said in argument that that decision did made by the Statute of Tennessee as against limited only to discriminations which were the citizens of other States, and that if the law had been equally as applicable to all travelers spection of that decision shows this to be a the decision would not cover it. But an inmistaken view of the subject. The court matter fully, and decided the precise point as grasped the whole matter, discussed the whole tion from the decision: law, as will be seen from the following quota "That on the 14th day of April, 1887, at the City of Washington he did engage in the business of a commercial agent, to wit: the busi- offer to sell them, before they are brought into "But to tax the sale of such goods, or the ness of offering for sale as agent of Lyons, the State, is a very different thing, and seems Conklin & Co., a firm doing business in the to us clearly a tax on interstate commerce itself. City of Baltimore, State of Maryland, certain It is strongly urged, as if it were a material goods, wares, and merchandise, by sample, cat-point in the case, that no discrimination is made alogue, and otherwise, without having first obtained a license to do so; contrary to the provisions of an Act of the Legislative Assembly." Prior to the decision of the Supreme Court of the United States at its present term, in the case of Robbins v. Taxing District of Shelby County, 120 U. S. 489 [Bk. 30, L. ed. 694]; S. C. 1 Interstate Com. Rep. 45, there had been very great diversity of opinion throughout the United States as to the power of a State to tax commercial agents who were transacting business by selling goods by sample or by soliciting contracts for sale of goods owned by persons in other States than where the solicitation or sale was made. That diversity of opinion not only pervaded the legal profession, but, as it appears by this recent decision of the supreme court, it still existed in that tribunal; so that there is a complete justification for those who entertained that opinion, and who urged the liability under such laws. between domestic and foreign drummers,those of Tennessee and those of other States,that all are taxed alike. But that does not meet the difficulty. Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the State. This was decided in the case of State Freight Tax Cases, 15 Wall. 232 [82 U. S. bk. 21, L. ed. 146]. The negotiation of sales of goods which are in another State, for the purpose of introducing them into the State in which the negotiation is made is interstate commerce. merchant cannot be taxed there for ordering A New Orleans goods from London or New York, because in the one case it is an act of foreign, and in the other of interstate commerce, both of which are subject to regulation by Congress alone." commerce. read an extract from the opinion of the SuIn connection with that decision it is well to preme Court of the United States in the case of Walling v. Michigan, in 116 U. S. 456 [Bk. 29, L. ed. 694], which is as follows: decision at all upon the question of discriminaThus it will be seen that it does not put the By justification I mean justification up to the drummers outside the State; but it says that no tion between drummers within the State and time that that decision was pronounced. That law which imposes upon the person soliciting decision being pronounced, however, it is ob- sales for merchants outside of the State is admisligatory upon all other tribunals and upon citi-sible, because that is a regulation of interstate zens of the United States. It is not obligatory upon the supreme court itself, as a final adjudication, because it is liable to be reviewed by it and reversed by it if, in its better judgment hereafter, it should entertain a different opinion from that which has been expressed by itself, because it is a well defined rule, announced by that court, that in constitutional can act under this power are of infinite variety, "The subjects indeed upon which Congress questions the rule of stare decisis is not obliga- requiring for their sucessful management diftory upon itself. Constitutional questions are ferent plans or modes of treatment. always open for revision by the supreme court them are national in their character, and admit itself, notwithstanding there may have been and require uniformity of regulation, affecting one or more decisions upon the subject. But, alike all the States; others are local, or are mere while open for revision by that court such de- aids to commerce, and can only be properly cisions, until reversed by it, are obligatory upon regulated by provisions adapted to their special all other tribunals, and demand implicit obe- circumstances and localities. Of the former dience from all citizens throughout this land. I class may be mentioned all that portion of com 266 Some of |