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21 SUPREME COURT REPORTER.

OCT. TERM,

section of the act of June 22, 1874 (18 Stat. | stamps, twenty-five cents for each package at L. 186, chap. 391), which authorized a so stamped shall be paid to the collector on court of the United States in revenue cases, making the entry for such transportation." on motion of the district attorney, to require This act was amended in 1872 (17 Stat. the defendant or the claimant to produce in at L. 230, chap. 315), the amendments to §§ court his private books, invoices, and papers, 73 and 74 being found on page 254; but they or else that the allegations of the attorney have no significance in respect to the presas to their contents should be taken as con- ent question. Now, it was the cost of those fessed, was held unconstitutional and void removal stamps which was complained of as as applied to an action for penalties or to in conflict with the constitutional provision establish a forfeiture of the party's goods, against a tax or duty upon exports, but the because repugnant to the 4th and 5th contention was overruled, the court saying Amendments to the Constitution. The case (pp. 374, 375, 376, L. ed. 658, 659) : is significant, for the statute was not so much in conflict with the letter as with the spirit of the restrictive clauses of those Amendments, and in respect to this the court said:

"Though the proceeding in question is de vested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta_principiis." p. 635, 29 L. ed. 753, 6 Sup. Ct. Rep. 535.

"The plaintiff contends that the charge for the stamps required to be placed on packages of manufactured tobacco intended for exportation was and is a duty on exports, within the meaning of that clause in the Constitution of the United States which declares that 'no tax or duty shall be laid on articles exported from any state.' But it is manifest that such was not its character or object. The stamp was intended for no other purpose than to separate and identify the tobacco which the manufacturer desired to export, and thereby, instead of taxing it, to relieve it from the taxation to which other tobacco was subjected. It was a means devised to prevent fraud and secure the faithful carrying out of the declared intent with regard to the tobacco so marked. We know how next to impossible it is to prevent fraudulent practices wherever the internal revenue is concerned; and the pretext of intending to export such an article as manufactured tobacco would open thewidest door to such practices, if the greatest strictness and precaution were not observed. The proper fees accruing in the due admin|istration of the laws and regulations necessary to be observed to protect the government from imposition and fraud likely to be On the other hand, Pace v. Burgess, 92 U. committed under pretense of exportation S. 372, 23 L. ed. 657, is cited as an author- are in no sense a duty on exportation. They ity against these conclusions; but an exami- are simply the compensation given for serv nation of the case shows that this is a mis-ices properly rendered. The rule by which take. The act of 1868 (15 Stat. at L. 125, they are estimated may be an arbitrary one; chap. 186), imposed certain taxes on the but an arbitrary rule may be more convemanufacture of tobacco for consumption or nient and less onerous than any other which use, required as evidence of the payment of can be adopted. The point to guard against such taxes the affixing of revenue stamps to is the imposition of a duty under the pretext the packages, and forbade the removal of any of fixing a fee. In the case under consideratobacco from the factory without payment tion, having due regard to that latitude of of the taxes and affixing of the stamps. It discretion which the legislature is entitled further provided that tobacco might be to exercise in the selection of the means for manufactured for export and exported with- attaining a constitutional object, we cannot out payment of any tax. Sections 73 and say that the charge imposed is excessive, or 74. page 157, are the sections making provi-that it amounts to an infringement of the sion for such export, and authorized the removal of the tobacco from the manufactory to certain designated warehouses at ports of entry upon the giving of suitable bonds. The latter part of § 74 reads:

"All tobacco and snuff intended for export, before being removed from the manufactory, shall have affixed to each package an engraved stamp indicative of such intention, to be provided and furnished to the several collectors, as in the case of other stamps, and to be charged to them and accounted for in the same manner; and for the expense attending the providing and affixing such

constitutional provision referred to. We cannot say that it is a tax or duty instead of what it purports to be, a fee or charge for the employment of that instrumentality which the circumstances of the case render necessary for the protection of the government.

"One cause of difficulty in the case arises from the use of stamps as one of the means of segregating and identifying the property intended to be exported. It is the form in which many taxes and duties are imposed and liquidated; stamps being seldom used except for the purpose of levying a duty or

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tax. But we must regard things rather than names. A stamp may be used, and, in the case before us we think it is used, for quite a different purpose from that of imposing a tax or duty; indeed, it is used for the very contrary purpose,-that of securing exemption from a tax or duty. The stamps required by recent laws to be affixed to all agreements, documents, and papers, and to different articles of manufacture, were really and in truth taxes and duties, or evidences of the payment of taxes and duties, and were intended as such. The stamp required to be placed on gold dust exported from California by a law of that state was clearly an export tax, as this court decided in the case of Almy v. California, 24 How. 169, 16 L. ed. 644. In all such cases no one could entertain a reasonable doubt on the subject."

Obviously, this opinion, taken as a whole, makes against, rather than in favor of, the contention of counsel for the government. Its argument is to the effect that the stamp required was in no proper sense a tax for revenue; that there was no burden of any kind on the export; that it was something to facilitate, rather than to hinder, exports; that it was only a means of identification and to enable parties to remove their tobacco from the manufactory to the warehouse, and that the sum demanded was simply a matter of compensation for services rendered. The statute itself declared that the 25 cents was to be paid "for the expense attending the providing and affixing" of the stamps. This clearly excludes the idea that any tax or duty was intended to be imposed, and the opinion notes the fact that the difficulty arises because ordinarily stamps are used for the purpose of duty or tax, says that we must always regard things rather than names, and that this stamp was not used for the purpose of tax or duty, but only for identification and to prevent frauds on the government. If it had been supposed that a stamp tax could properly be charged, the line of argument would have been entirely different. In the case before us the stamp is distinctly for the purpose of revenue, and not by way of compensation for services rendered, so that the question is whether revenue can be collected from exports by changing the form of the tax from a tax on the article exported to a tax on the bill of lading which evidences the export.

Again, it is said that if this stamp duty on foreign bills of lading cannot be sustained it will follow that tonnage taxes and stamp duties on manifests must also fall. The validity of such taxes is not before us for determination, and therefore we must decline to express any opinion thereon, and yet it may be not improper to say that, even if the suggested result should follow, it furnishes no reason for not recognizing that which, in our judgment, is the true construction of the constitutional limitation. Mingling in one statute two or three unconstitutional taxes cannot be held operative to validate either one, and if the reasoning we have stated and followed in reaching the conclusion in this 21 S. C.-42.

case shall also lead to the result that such taxes are invalid, it of itself does not weaken the force of the reasoning or justify us in departing from its conclusions. But we may be permitted to suggest, without deciding, that there may be a valid difference as indicated by the decisions of this court in respect to interstate commerce. It has been distinctly held that no state could by a license or otherwise impose a burden on the business of interstate commerce. Pickard v. Pullman Southern Car Co. 117 U. S. 34, 29 L. ed. 785, 6 Sup. Ct. Rep. 635, and cases cited in the opinion. And yet that decision was followed by decisions that it might tax the vehicles and property employed in interstate commerce so long and so far as they were a part of the property of the state. Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 35 L. ed. 613, 3 Inters. Com. Rep. 595, 11 Sup. Ct. Rep. 876, and cases cited in the opinion. This difference may have significance in respect to these other taxes. As heretofore said, we do not decide the question, but only make these suggestions to indicate that the matter has been considered.

Another matter pressed upon our attention, which deserves and has received careful consideration, is the practical construction of this constitutional provision by legislative action. On July 6, 1797, an act was passed entitled, "An Act Laying Duties on Stamped Vellum, Parchment, and Paper" (1 Stat. at L. 527, chap. 11), which contained this clause:

"Any note or bill of lading, for any goods or merchandise to be exported, if from one district to another district of the United States, not being in the same state, ten cents; if to be exported to any foreign port or place, twenty-five cents," etc. p. 528.

This was changed by the act of February 28, 1799 (1 Stat. at L. 622, chap. 17), but only as to the amount. On April 6, 1802 (2 Stat. at L. 148, chap. 19), a repealing act was passed. Again, on July 1, 1862 (12 Stat. at L. 432, chap. 119), a similar stamp duty was imposed on foreign bills of lading, which was continued by the act of June 30, 1864 (13 Stat. at L. 218, 291, chaps. 172, 173), finally repealed by the act of June 6, 1872 (17 Stat. at L. 230, 256, chap. 315), and then followed the act in question. In Knowlton v. Moore, 178 U. S. 41, 44 L. ed. 969, 20 Sup. Ct. Rep. 747, in which the inheritance tax was considered, the significance of this practical construction by legis lative action was referred to, and on pages 56, 57, L. ed. 976, Sup. Ct. Rep. 753, 754, we said:

"The act of 1797, which ordained legacy taxes, was adopted at a time when the founders of our government and framers of our Constitution were actively participating in public affairs, thus giving a practical construction to the Constitution which they had helped to establish. Even the then members of the Congress who had not been delegates to the convention which framed the Constitution must have had a keen appreciation of the influences which had shaped the

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Constitution and the restrictions which it embodied, since all questions which related to the Constitution and its adoption must have been, at that early date, vividly impressed on their minds. It would, under these conditions, be indeed surprising if a tax should have been levied without question upon objects deemed to be beyond the grasp of Congress because exclusively within state authority. It is, moreover, worthy of re-statute; and, third, those in which the court, mark that similar taxes have at other periods and for a considerable time been enforced; and although their constitutionality was assailed on other grounds held unsound by this court, the question of the want of authority of Congress to levy a tax on inherit-Virginia, 6 Wheat. 264, 5 L. ed. 257. There ances and legacies was never urged against the acts in question."

And again, when the construction of the uniformity clause was being considered (p. 92, L. ed. 990, Sup. Ct. Rep. 767):

"But one of the most satisfactory answers to the argument that the uniformity required by the Constitution is the same as the equal and uniform clause which has since been embodied in so many of the state constitutions, results from a review of the practice under the Constitution from the beginning. From the very first Congress down to the present date, in laying duties, imposts, and excises, the rule of inherent uniformity, or, in other words, intrinsically equal and uniform taxes, has been disregarded, and the principle of geographical uniformity consistently enforced."

erence thereto, the practical construction placed by Congress or the department charged with the execution of the statute was sufficient to remove the doubt; second, those in which the court has either stated or assumed that the question was doubtful, and has rested its determination upon the fact of a long-continued construction by the officials charged with the execution of the noticing the fact of a long-continued construction, has distinctly affirmed that such construction cannot control when there is no doubt as to the true meaning of the statute. The first class is illustrated by Cohen v. the question presented was the jurisdiction of this court over proceedings by indictment in a state court for a violation of a state statute. In an elaborate argument Chief Justice Marshall sustained the jurisdiction, and then added (p. 418, L. ed. 294):

"Great weight has always been attached, and very rightly attached, to contemporaneous exposition. No question, it is believed,* has arisen to which this principle applies more unequivocally than to that now under consideration."

And in support of that referred to the writings in the Federalist, which were presented before the adoption of the Constitution, and were generally recognized as powerful arguments in its favor; also to the judiciary act of 1789 (1 Stat. at L. 73, chap. 20), the decisions of this court, and the assent of the courts of several states thereto, saying (p. 421, L. ed. 295):

"This concurrence of statesmen, of legislators, and of judges in the same construc tion of the Constitution may justly inspire some confidence in that construction."

That was not the first case in which this matter has been considered by this court. On the contrary, it has been often presented. See in the margin a partial list of cases in which the subject has been discussed.† An examination of the opinions in those cases will disclose that they may be grouped in three classes: First, those in which the court, after seeking to demonstrate the validity or the true construction of a statute, "It is not unimportant to state that the conhas added that, if there were doubt in ref-struction which we have given to the terms

Again, in United States v. State Bank, 6 Pet. 29, 39, 8 L. ed. 308, 311, Mr. Justice Story, in like manner, said:

413 United States v. Hill, 120 U. S. 169, 182, 30 L. ed. 627, 632, 7 Sup. Ct. Rep. 510; United States v. Johnston, 124 U. S. 236, 253. 31 L. ed. 389, 396, 8 Sup. Ct. Rep. 446; Robertson v. Downing, 127 U. S. 607, 613, 32 L. ed. 269, 271, 8 Sup. Ct. Rep. 1328; Merritt v. Cameron, 137 U. S. 542, 552, 34 L. ed. 772, 776, 11 Sup. Ct. Rep. 174; Schell v. Fauche, 138 U. S. 562, 570, 34 L. ed. 1040, 1042, 11 Sup. Ct. Rep. 376; United States v. Alabama G. S. R. Co. 142 U.

Stuart v. Laird, 1 Cranch, 299, 2 L. ed. 115; | Laura, 114 U. S. 411, 416, sub nom. Pollock v. Martin v. Hunter. 1 Wheat. 304, 351, 4 L. ed. 97, Bridgeport S. B. Co. 29 L. ed. 147, 148, 5 Sup. 109; Cohen v. Virginia, 6 Wheat. 264, 418, 5 Ct. Rep. 881; United States v. Philbrick, 120 L. ed. 257, 294; Edwards v. Darby, 12 Wheat. | U. S. 52, 59, 30 L. ed. 359, 561, 7 Sup. Ct. Rep. 206, 210, 6 L. ed. 603, 604; United States v. State Bank, 6 Pet. 29, 39, 8 L. ed. 308, 311; United States v. Macdaniel, 7 Pet. 1, 15, 8 L. ed. 587, 592; Prigg v. Pennsylvania, 16 Pet. 539, 10 L. ed. 1060; Union Ins. Co. v. Hoge, 21 How. 25, 66, 16 L. ed. 61, 68; United States v. Alexander, 12 Wall. 177, 181, sub nom. United States v. Mayes, 20 L. ed. 381, 382; Peabody v. Stark, 16 Wall. 240, 243, sub nom. Peabody v. Draughn, 21 L. ed. 311, 313; Dollar Sav. Bank v. United States, 19 Wall. 227, 237, 22 L. ed. | S. 615, 621, 35 L. ed. 1134, 1136, 12 Sup. Ct. 80, 81: Smythe v. Fiske, 23 Wall. 374, 382, 23 L. ed. 47, 49; United States v. Moore, 95 U. S. 760, 763, 24 L. ed. 588, 589; Swift & C. & B. Co. v. United States, 105 U. S. 691, 695, 26 L. L. ed. 1108, 1109; Hahn v. United States, 107 U. S. 402, 406. 27 L. ed. 527, 528. 2 Sup. Ct. Rep. 494; United States v. Graham, 110 U. S. 219, 221, 28 L. ed. 126, 3 Sup. Ct. Rep. 582; Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57, 28 L. ed. 349, 351, 4 Sup. Ct. Rep. 279; Brown v. United States, 113 U. S. 568, 571, 28 L. ed. 1079, 1080, 8 Sup. Ct. Rep. 648; Cooper Mfg. Co. v. Ferguson, 113 U. 8. 727, 733, 28 L. ed. 1137, 1138, 5 Sup. Ct. Rep. 739; The

Rep. 306; McPherson v. Blacker, 146 U. S. 1, 36 L. ed. 869, 13 Sup. Ct. Rep. 3; United States v. Tanner, 147 U. S. 661, 663, 37 L. ed. 321, 322, 13 Sup. Ct. Rep. 436; United States v. Union P. R. Co. 148 U. S. 562, 572, 37 L. ed. 560, 563, 13 Sup. Ct. Rep. 724; United States v. Alger, 152 U. S. 384, 397, 38 L. ed. 488, 14 Sup. Ct. Rep. 635; Webster v. Luther, 163 U. S. 331, 342, 41 L. ed. 179, 182, 16 Sup. Ct. Rep. 963; Wisconsin C. R. Co. v. United States, 164 U. S. 190, 205, 41 L. ed. 399, 404, 17 Sup. Ct. Rep. 45; Hewitt v. Schultz, 180 U. S. 139-156, 45 L. ed. —, 21 Sup. Ct. Rep. 309.

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of the act is that which is understood to | biguity or doubt, then such a practice, begun have been practically acted upon by the gov- so early and continued so long, would be in ernment, as well as by individuals, ever since the highest degree persuasive, if not absoits enactment. Many estates, as well of de lutely controlling in its effect. But with ceased persons, as of persons insolvent who language clear and precise, and with its have made general assignments, have been meaning evident, there is no room for consettled upon the footing of its correctness. struction, and consequently no need of anyA practice so long and so general would, of thing to give it aid. The cases to this ef itself, furnish strong grounds for a liberal fect are numerous." construction, and could not now be disturbed without introducing a train of serious mischiefs. We think the practice was founded in the true exposition of the terms and intent of the act, but if it were susceptible of some doubt, so long an acquiescence in it would justify us in yielding to it as a safe and reasonable exposition."

In United States v. Tanner, 147 U. S. 661, 663, 37 L. ed. 321, 322, 13 Sup. Ct. Rep. 436, 437, it was said by Mr. Justice Brown:

"If it were a question of doubt, the construction given to this clause prior to October, 1885, might be decisive; but, as it is clear to us that this construction was erroneous, we think it is not too late to overrule it. United States v. Graham, 110 U. S. 219, 28

In the second class may be placed Stuart v. Laird, 1 Cranch, 299, 2 L. ed. 115; Bur-L. ed. 126, 3 Sup. Ct. Rep. 582; Swift & C. & row-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 28 L. ed. 349, 4 Sup. Ct. Rep. 279, in which last case Mr. Justice Miller, speaking for the court, used this language (p. 57, L. ed. 351, Sup. Ct. Rep. 381).

"The construction placed upon the Constitution by the first act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive."

B. Co. v. United States, 105 U. S. 691, 26 L. ed. 1108. It is only in cases of doubt that the construction given to an act by the department charged with the duty of enforcing it becomes material."

In United States v. Alger, 152 U. S. 384, 397, 38 L. ed. 488, 14 Sup. Ct. Rep. 635, Mr. Justice Gray used this language:

"If the meaning of that act were doubtful,' its practical construction by the Navy Department would be entitled to great weight. But as the meaning of the statute, as applied to these cases, appears to this court to be perfectly clear, no practice inconsistent with that meaning can have any effect."

In Webster v. Luther, 163 U. S. 331, 342, 41 L. ed. 179, 182, 16 Sup. Ct. Rep. 963, 967, Mr. Justice Harlan stated the rule in these words:

cases should be followed by the courts, espe cially when important interests have grown

See also The Laura, 114 U. S. 411, sub nom. Pollock v. Bridgeport S. B. Co. 29 L. ed. 147, 5 Sup. Ct. Rep. 881; United States v. Philbrick, 120 U. S. 52, 59, 30 L. ed. 559, 561, 7 Sup. Ct. Rep. 413; United States v. "The practical construction given to an Hill, 120 U. S. 169, 182, 30 L. ed. 627, 632, act of Congress fairly susceptible of differ7 Sup. Ct. Rep. 510; Robertson v. Downing, ent constructions, by one of the executive de127 Ü. S. 607, 613, 32 L. ed. 269, 271, 8 Sup. partments of the government, is always enti Ct. Rep. 1328; and Schell v. Fauche, 138 Ü.tled to the highest respect, and in doubtful S. 562, 572, 34 L. ed. 1040, 1043, 11 Sup. Ct. Rep. 376, 380, in which it was said: "In all cases of ambiguity, the contempo-up under the practice adopted. Bate Reraneous construction, not only of the courts, frigerating Co. v. Sulzberger, 157 U. S. 1, 34, but of the departments, and even of the offi- 39 L. ed. 601, 610, 15 Sup. Ct. Rep. 508; cials whose duty it is to carry the law into United States v. Healey, 160 U. S. 136, 141, effect, is universally held to be controlling." 40 L. ed. 369, 371, 16 Sup. Ct. Rep. 247. But The third class is the largest. While the this court has often said that it will not perlanguage used by the several justices an-mit the practice of an executive department nouncing the opinions in these cases is not to defeat the obvious purpose of a statute." the same, the thought is alike. Thus, in From this résumé of our decisions it clearSwift & C. & B. Co. v. United States, 105 U.ly appears that practical construction is reS. 691, 695, 26 L. ed. 1108, 1109, Mr. Justice Matthews said:

"The rule which gives determining weight to contemporaneous construction put upon a statute by those charged with its execution applies only in cases of ambiguity and doubt."

In United States v. Graham, 110 U. S. 219, 221, 28 L. ed. 126, 3 Sup. Ct. Rep. 582, 583, Chief Justice Waite thus stated the law:

"Such being the case it matters not what the practice of the departments may have been or how long continued, for it can only be resorted to in aid of interpretation, and 'it is not allowable to interpret what has no need of interpretation.' If there were am

lied upon only in cases of doubt. We have referred to it when the construction seemed to be demonstrable, but then only in response to doubts suggested by counsel. Where there was obviously a matter of doubt, we have yielded assent to the construction placed by those having actual charge of the execution of the statute, but where there was no doubt we have steadfastly declined to recognize any force in practical construction. Thus, before any appeal can be made to prac tical construction, it must appear that the true meaning is doubtful.

We have no disposition to belittle the sig nifiance of this matter. It is always entitled to careful consideration, and in doubtful cases will, as we have shown, often turn the

scale; but when the meaning and scope of a constitutional provision are clear it cannot be overthrown by legislative action, although several times repeated and never before challenged. It will be perceived that these stamp duties have been in force during only three periods: First, from 1797 to 1802; second, from 1862 to 1872; and, third, commencing with the recent statute of 1898. It must be borne in mind also in respect to this matter, that during the first period exports were limited and the amount of the stamp duty was small, and that during the second period we were passing through the stress of a great civil war, or endeavoring to carry its enormous debt; so that it is not strange that the legislative action in this respect passed unchallenged. Indeed, it is only of late years, when the burdens of taxation are increasing by reason of the great expenses of government, that the objects and modes of taxation have become a matter of special scrutiny. But the delay in presenting these questions is no excuse for not giving them full consideration and determining them in accordance with the true meaning of the Constitution.

pany to be carried from Minnesota to Liverpool, and for which the company issued its bill of lading.

We are of opinion that this contention cannot be sustained without departing from a rule of constitutional construction by which this court has been guided since the foundation of the government. Let us see to what extent Congress has exercised the pow er now held not to belong to it under the Constitution.

As early as July 6th, 1797, Congress passed an act entitled "An Act Laying Du ties on Stamped Vellum, Parchment, and Paper." By the 1st section of that act it was provided that from and after the 31st day of December thereafter there should be "levied, collected, and paid throughout the United States the several stamp duties following, to wit: For every skin or piece of vellum, or parchment, or sheet or piece of paper upon which shall be written or printed any or either of the instruments or writings following, to wit: . Any note or bill of lading for any goods or merchandise to be exported to any foreign port or place, twenty-five cents." 1 Stat. at L. 527, 528, chap. 11, § 1. The same act provided: "That if any person or persons shall write or print, or cause to be written or printed, upon any unstamped vellum, parchment, or paper (with intent fraudulently to evade the duties imposed by this act), any of the mat

Without enlarging further on these matters, we are of opinion that a stamp tax on a foreign bill of lading is in substance and effect equivalent to a tax on the articles included in that bill of lading, and therefore a tax or duty on exports, and in conflict with the constitutional prohibition. The judg-ters and things for which the said vellum, ment of the District Court will be reversed, and the case remanded, with instructions to grant a new trial.

Mr. Justice Harlan (with whom concurred Mr. Justice Gray, Mr. Justice White and Mr. Justice McKenna) dissenting:

By the act of June 13th, 1898, chap. 448, imposing certain stamp duties, it was declared that there should be levied, collected, and paid the sum of ten cents "for and in respect of the vellum, parchment, or paper upon which 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, bills of lading or receipt (other than charter party) for any goods, merchandise, or effects to be exported from a port or place in the United States to any foreign port or place. Provided, That the stamp duties imposed by the foregoing schedule on manifests, bills of lading, and passage tickets shall not apply to steamboats or other vessels plying be tween ports of the United States and ports in British North America." 30 Stat. at L. 448, 451, 458, 459, 462, §§ 6 and 24, schedule

A.

parchment, or paper is hereby charged to pay any duty, or shall write or print, or cause to be written or printed, any matter or thing upon any vellum, parchment, or paper that shall be marked or stamped for any lower duty than the duty by this act payable, such person so offending shall for every such of

fense forfeit the sum of one hundred dollars." Id. § 13.

By an act approved December 15th, 1797, chap. 1, it was provided that the duties prescribed by the act of July 6th, 1797, should be levied, collected, and paid from and after June 30th, 1798, and not before. 1 Stat. at L. 536.

The above act of July 6th, 1797, was amended in certain particulars by an act approved March 19th, 1798, chap. 20, by which certain provisions were made for furnishing the vellum, parchment, or paper required by the former act to be stamped and marked. 1 Stat. at L. 545.

It not having occurred to any of the great statesmen and jurists who were connected with the early history of the government that enactments such as that of July 6th, 1797, violated the Constitution, Congress passed another act on the 28th day of February, 1799, chap. 17, imposing a duty of 10 cents "on every skin or piece of vellum or *It is contended that this stamp duty is parchment or sheet or piece of paper on forbidden by the clause of the Constitution which shall be written or printed any or declaring that "no tax or duty shall be laid either of the instruments following, to wit: on any articles exported from any state" Any note or bill of lading, or writ(art. 1, § 9); and that the stamp duty here ing or receipt in the nature thereof, for any in question was, within the meaning of that goods or merchandise to be export instrument, a tax or duty on the wheat re-ed to any foreign port or place." 1 Stat. at ceived by the Northern Pacific Railway Com- L. 622.

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