Tennessee. The Constitution provides that "the legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals, inconsistent with the general laws of the land, nor to pass any law granting to any individual or individuals rights, privileges, immunities, or exemptions, other than such as by the same law is extended to any member of the community who may be able to bring himself within the provisions of such law." A law imposing a tax on photographers, graduated by the population of the town, does not violate this provision.1

Maine.-A provision in the Constitution that "no tax or duty shall be imposed without the consent of the people, or of their representatives in the legislature," in no way limits the power of the legis lature to repeal an act by which taxes have been imposed, or to prohibit their collection.2

Louisiana.-In an action to recover taxes, it is no defense that the State debt has reached its limit, if the law imposing the tax is valid.3

Illinois.-The Constitution inhibits the commutation of State taxes, or their payment to any person other than the treasurer of the State. A law which allows counties and towns to appropriate a part of the State taxes collected in the county or town in aid of a navigation company, violates this provision of the Constitution, and is void. So the provision that all taxes shall be levied by valuation, so that every person shall pay a tax in proportion to the value of his property, is violated where the tax for one year is extended on the roll on a valuation made for another year; it is as if made without a valuation.5

1 State v. Schlier, 3 Heisk. (Tenn.) 278. 'State v. Maginnis, 26 La. Ann. 558.

2 Augusta v. North, 57 Me. 392.

4 People v. Kaskaskia Nav. Co. 65 Ill. 548.

5 Town of Lebanon v. O. & M. R. R. Co. 77 Ill. 539.

CHAPTER VI.

LIMITATIONS ON THE TAXING POWER PRESCRIBED BY THE CONSTITUTION OF THE UNITED STATES.

§ 62. Imports and Exports not to be Taxed.-The Constitution of the United States provides that "No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws." 1

What is an impost or a duty on imports? "It is a custom or a tax levied on articles brought into a country, and is most usually secured before the importer is allowed to exercise his rights of ownership over them." But this duty or tax is not merely a tax on the act of importation; it is a tax on the thing imported, and extends to the article after it has entered the country. The leading case on this subject arose out of a statute of Maryland requiring all importers of foreign articles or commodities, of dry goods, wares, or merchandise, by bale or package, or of rum, brandy, whisky and other distilled spirits, and other persons selling the same by wholesale, to take out a license, for which they were to pay fifty dollars, and in case of neglect, subjecting them to certain penalties. Browne was indicted for a violation of this act. The State court held the act a valid exercise of the taxing power of the State. The decision was reversed in the Supreme Court of the United States, that court holding the tax to be an impost, and in violation of the constitutional provision under discussion, Marshall, Ch. J., saying: "This indictment is against the importer, for selling a package of dry goods in the form in which it was imported, without a license. This state of things is changed if he sells them or otherwise mixes them with the general property of the State, by breaking up his packages and traveling with them as an itinerant peddler. In the first case, the tax intercepts the import, as an import on its way to become incorporated with the general mass of property, and denies it the privilege of becoming so incorporated until it shall

'Constitution United States, art. 1, § 10, par. 2.

2

* Marshall, J., Browne v. Maryland, 12 Wheat. 419.

$ Ibid.

have contributed to the revenue of the State. It denies to the importer the right of using the privilege which he has purchased from the United States, until he shall have also purchased it from the State. In the last case, the tax finds the article already incorporated with the mass of property by the act of the importer. He has used the privilege he had purchased, and has himself mixed the imports with the common mass, and the law may treat them as it finds them." The imported article continues to be a part of the foreign commerce of the country while it remains in the hands of the importer for sale in the original package. The authority to import carries with it the authority to sell the imported article in the condition in which it is imported. This privilege, obtained by paying the import duty to the government of the United States, cannot be abridged by the States, either by a direct tax on the article imported, or by requiring a license from the importer before exercising his right to sell. When the original package is broken by the importer, either for use or for retail, or passes into the hands of a purchaser, it ceases to be an import, becomes mixed with the general mass of property in the State, and subject to taxation by the State. A tax upon the sales of brokers, of certain foreign wines and ardent spirits, and all other goods, the production of any foreign country, offered for sale by sample, is an impost duty; this is not a tax upon the avocation, but upon merchandise which still retains the character of an import. The importer is shielded from State taxation, but the exemption does not extend to a purchaser from the importer, even in the original package; by sale and delivery the merchandise loses its characteristic as an import. Salt was imported at Mobile; the original consignees made the entries, presented the invoices and bills of lading, made the necessary deposit of coin for the estimated amount of the duties, and procured from the custom house the permits to unload. Goods imported at Mobile are unladen about twenty-five miles below the city in the bay, in lighters, and thus brought to the city. Waring was in the habit of purchasing salt, before arrival, to be at the risk of shippers until delivered in his lighters; he sold again in original packages. The city of Mobile imposed a tax on all sales of merchandise in that city. Waring refused to pay on his sales of salt. He was held liable to the tax. He was not the importer; the consignees or shippers were the importers of the salt. Clifford, J., said: "Sales by the importer are

1 Id. 445.

2 Taney, J., in the License Cases, 5 How. 575; Low v. Austin, 13 Wall. 29; 15 Wall. 295. 3 People v. Manning, 42 N. Y. 374. 4 Waring v. The Mayor, 8 Wall. 110.

held to be exempt from State taxation because the importer purchases, by the payment of the duty, a right to dispose of the merchandise, as well as to bring it into the country, and because the tax, if it were held to be valid, would intercept the import, as an import, in the way to become incorporated with the general mass of property, and would deny it the privilege of becoming so incorporated until it should have contributed to the revenue of the State. But the sales of the goods imported in this case were made by the shippers or consignees, and the complainant was the purchaser, and not the first vendor of the imported merchandise.” 1

The term impost only applies to a tax on articles imported from foreign countries; it does not apply to articles brought from one State to another. The city of Mobile imposed a tax on "sales at auction." Woodruff received, as consignee and agent for others, large amounts of goods and merchandise, the product of other States than Alabama, and sold the same in Mobile to purchasers in the original packages. He claimed that the tax on these sales was a tax on the goods and an impost. It was held a valid tax. Miller, J., said: "Whether we look, then, to the terms of the clause of the Constitution in question, or to its relation to the other parts of that instrument, or to the history of its formation and adoption, or to the comments of the eminent men who took part in these transactions, we are forced to the conclusion that no intention existed to prohibit, by this clause, the right of one State to tax articles brought into it from another." But when a tax is imposed on the privilege of selling goods, wares and merchandise, the growth, produce, or manufacture of other States, this is a tax on the goods themselves; it discriminates against the products of other States, is a regulation of interstate commerce, and void.

This clause of the Constitution does not limit the authority of the State under the police power, to prohibit the retail and internal traffic in ardent spirits. The State is bound to receive and permit the sale by the importer of any article of merchandise, which Congress authorizes to be imported, but it is not bound to abstain from the passage of laws which it deems proper to guard the health or morals of its citizens, although the effect of the laws may be to discourage importation, and diminish the profits of the importer and the revenue

1 Ibid. 122; Pervear v. Commonwealth, 5 Wall. 478, 479.

2 Woodruff v. Parham, 8 Wall. 123; Hinson v. Lott, 8 Wall. 148; State v. Pinckney, 10 Rich. (Law), 474; Harrison v. Vicksburg, 3 Smedes & Marshall, 581.

3 8 Wall. 136. 4 Welton v. State of Missouri, 1 Otto, 275; rev'g s. c. 55 Mo. 378.

of the general government.1 And where the government of the United States imposes a license tax on the sale of liquors, or other business, it does not interfere with the right of the State to impose a similar license tax on the same business. Where the State absolutely prohibits the sale of intoxicating liquors, it does not deprive its citizens of the privileges and immunities secured to them by the fourteenth amendment of the Constitution of the United States.

The exception contained in the provision, that the State may impose such a tax on imports as may be necessary for executing its inspection laws, will be considered under the provision giving Congress authority to regulate commerce.

§ 63. Tonnage Duty.-The Constitution of the United States provides that "no State shall, without the consent of Congress, lay any duty of tonnage." This prohibition, like the preceding one, and like the provision giving to Congress the power to regulate commerce, was designed to enable the government to give uniformity to the commerce of the States with foreign countries, and with each other. But it would have been useless to prohibit the taxing of imported goods, if the States retained the power of taxing the vessels, as such, which carried the goods. While this provision was necessary to carry out this scheme, it was not necessary to prohibit the States from taxing vessels as property in the same manner as other property of the State is taxed, and the provision has been so construed as not to interfere with such taxation.5

Congress has prescribed the rules of measurement and computation in ascertaining the tonnage of American ships and vessels. The word tonnage, in the light of these regulations, means the contents of the vessel expressed in tons of one hundred cubical feet each. A tax laid upon vessels graduated by this tonnage, is a duty of tonnage. It has been claimed that where the owners of the vessel reside in the State, and the tonnage is referred to as a mode to determine and ascertain the tax to be assessed, and to furnish a rule to govern the assessors in the performance of their duties, the provision is not violated, but unsuccessfully in the courts of the United States. The State of Alabama laid a tax "on all steamboats, vessels, and other water-crafts plying in the navigable waters of the State, at the rate of one dollar per ton of

'License Cases, 5 How. 404, 577. Smith v. Marston, 5 Texas, 426, criticising this decision, was made while Texas was a republic.

? License Tax Cases, 5 Wall. 462; Pervear v. Commonwealth, Id. 475.

Perry v. Torrance, 8 Ohio, 521; Hays v. The Pacific Mail Steamship Co. 17 How. 598; State Tonnage Tax Cases, 12 Wall. 213.