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Supreme Court, has reference to imported goods in original packages, in the possession of the merchant importer. As this restriction upon the powers of the States has been recently called in question by officials in Massachusetts,* and practically denied by the actual assessment in that State of such property, the commissioners ask attention to the following recent exposition of this subject by a recognised authority :“ The Constitution of the United States declares that no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws. Under this prohibition some difficulty has been experienced in indicating, with sufficient accuracy for practical purposes, the point of time at which articles brought into the country from abroad cease to be regarded as imports in the sense of constitutional protection, and become liable to State taxation; but it has been said generally, that where the importer has so acted upon the thing imported, that it has become incorporated, and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State ; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty upon imports to escape the prohibition in the Constitution. And it was also declared in the same case (Brown v. Maryland), that a State
* The case relied on by the commissioners in their former report, to sustain their position in respect to the right of a State to tax imported goods, was that of Brown v. The State of Maryland (12 Wheaton, 449); the question involved being the legality of a licence tax imposed by the State as a prerequisite to the right to sell an imported article. The court (Chief Justice Marshall) held that this tax, though indirect in form (i.e., a licence on the person of the importer), was in fact equivalent to a duty on imports, and therefore illegal; and that the right to import carried with it the right to sell.
In reply to this, the chairman of the board of assessors of the city of Boston (see auditor's report of the city of Boston, 1871) makes the following statement :
“There is certainly a broad distinction between the prohibition of the right to sell an imported article, and the right to tax the same as property. The decision of the United States court was to the effect that the State could not enact a law that would prevent the sale of such property, and did not touch the question of the right to tax. In a recent decision of the Supreme Judicial Court of Massachusetts, Dunbar v. Boston (101 Mass., 317), where the question was raised that the commonwealth could not tax a stock of liquors, the sale of which, by her laws, she had declared illegal, the court sustained the tax, upon the ground that the case did not show that the goods could not be legally sold. As the law stood at the time the decision was given, but one class of the plaintiff's stock of intoxicating liquors could legally be sold; and that was his importations in the original packages."
law, which for revenue purposes required a merchant to take a licence, and pay fifty dollars, before he should be allowed to sell a package of imported goods, was equivalent to laying a tax upon imports. And it has been held in another case, that a stamp duty imposed by the legislature of California upon bills of lading for gold and silver, transported from that State to any port or place out of the State, was in effect a tax upon exports, and the law was consequently void."*-(Cooley's Constitutional Limitations.)
Limitations on Power of the Power of the Federal Govern ment in Respect to the States.
But if the States cannot tax the agencies or instrumentalities by which the Federal government performs its functions, it would seem to clearly follow that for the same reasons the Federal government cannot tax State instrumentalities or agencies. And so the courts of the United States have held, whenever this question has been brought before them for adjudication. Thus, in a case of recent decision (Day v. Buffington, U.S. Circuit Court, Mass. District), it was held that the salary of a State official, in this particular instance a judge of probate, could not be legally subjected to assessment for an income tax, under the laws of the United States authorising the assessment and collection of internal revenue; and Congress, some years since, acting under the advice of the United States Supreme Court, repealed so much of the internal revenue act as previously required the affixing of stamps to State processes, warrants, commissions, etc. In the
* This case, Almy v. California (24 Howard, U. S. Reports, p. 169), arose under a statute of California, which imposed a stamp tax on bills of lading for the transportation of gold and silver from any point within the State to any point without the State. The question, as presented to the Supreme Court of the United States under this statute, was stated to be as follows:Is this stamp act, so required to be paid by State authority, an impost, or an expost, within the meaning of the constitutional prohibition upon the States? It was held by an unanimous bench that the tax fell within the terms of the prohibition, or was in conflict with the clause of the Constitution giving Congress the right to regulate commerce with foreign nations. In a subsequent review of this case, 1868, Mr. Justice Miller stated that the case was well decided, but on a different ground, viz., “That such a tax was a regulation of commerce; a tax imposed on the transportation of goods from one State to another, over the high seas, in conflict with that freedom of transit of goods and persons between one State and another, which is within the rule laid down in Crandall v. Nevada (6 Wallace, U. S. Reports, 382), and with the authority of Congress to regulate commerce among the States." It, therefore, follows that bills of lading given for goods transported from one State to another are inter-State instruments, and as such cannot be subjected to State taxation; and it would further seem that bills, drafts, bonds, &c., made in one State and payable in another, are similar inter-State instruments, and as such cannot be taxed by State authority any more than bills of lading, the taxation of which by States, as above shown, has been decided to be unconstitutional.
case of Warren v. Paul (22 Ind., 279), the court used the following language : ", The Federal government may tax the governor of a State or the clerk of a State court and his transactions as an individual, but not as a State officer. This must be so, or the State may be annihilated at the pleasure of the Federal government. The Federal government may, perhaps, take by taxation most of the property in a State if exigencies require, but it has not a right by direct or indirect means to annihilate the functions of the State government.”
It would seem, from the above referred to decisions and Taxation of the precedents, to follow that what is unconstitutional and un- ties or Agencies lawful for the Federal government to do in respect to the of one State of
the Federal States, is equally unconstitutional and unlawful for one State Union by to do in respect to another and sister State ; as, for example,
Unconstituthe taxing of such an instrumentality of one State as its tional. “borrowing power" by another State. And hence the commissioners hold, in conformity with the opinions of some of the best legal authorities in the country with whom they have conferred, that the bond of a State of the Federal Union, issued for the purpose of raising money, or as the acknowledgment of indebtedness, is not taxable by any authority other than the State which issued it. And, in support of this assumption, the commissioners would ask attention to the following citations from a recognised authority :
In the case of Weston v. The City of Charleston (2 Peters, 449), the Supreme Court of the United States, by Chief Justice Marshall, held, that a tax on stock of the United States, held by an individual citizen of a State, is a tax on the power to borrow money on the credit of the United States, and cannot be levied on the authority of a State consistently with the constitution. “ Can anything be more dangerous,” he continues, " or more injurious, than the admission of a principle which authorises every State and every corporation of the Union, which possesses the right of taxation, to burden the exercise of this (borrowing) power at their discretion ? " A tax on the stock, or bonds of a State, is, therefore, a tax on the borrowing power of such State.
The court further held, that a tax of this description was a tax upon contracts;* using the following language :
* What interpretation the Supreme Court puts upon the word "contract," as found in that clause of the Constitution of the United States, which provides “ that no State shall pass any law impairing the obligations of con
wing language employed by Chief Justice Marshall, in giving the opinion of the court in the celebrated case of the Trustees of Dartmouth College v. Woodford: “The term contract must be
tracts," is made clear by the following language employed
“ Congress has power to borrow money on the credit of the United States. The stock it issues is evidence of a debt created by the exercise of this power. The tax in question is a tax upon the contract subsisting between the government and the individual. It bears directly upon the contract. While subsisting and in full force, the power operates upon the contract the instant it is framed, and must imply a right to affect that contract. If the States and corporations throughout the Union possess the power to tax a contract for the loan of money, what shall arrest the principle in its application to every other contract? What measure can government adopt which will not be exposed to its influence ? The right to tax the contract to any extent, when made, must operate upon the power to borrow before it is exercised, and have a sensible influence on the contract. The extent of this influence depends on the will of a distinct government. To any extent, however inconsiderable, it is a burden on the operations of government. It may be carried to an extent which shall arrest them entirely."
It is interesting to note that this decision establishes the economic principle, so far as a court of the highest resort can by its decision so establish such a principle, that when a State imposes a tax on its own obligations, or on the obligations of its municipalities, it in effect taxes its own borrowing · power; and to the extent of the tax reduces the value of
its bonds or obligations when issued. The final result of all which procedure is that the State defrays the expense of the assessment, collection, and disbursement of an odious, inquisitorial tax, without deriving the least advantage from its imposition. All taxes, therefore, levied on evidences of debt, must be in effect burdens on the borrowers, who are usually the persons least able to sustain the weight of taxation. But if the taxation of the instrumentalities of one State by another State is constitutional, the commissioners would ask if such
understood as intended to guard against a power of at least doubtful utility, the abuse of which had been extensively felt, and to restrain the Legislature in future from violating the right to property. That anterior to the formation of the Constitution, a course of legislation had prevailed in many, if not all, of the States, which weakened the confidence of man in man, and embarrassed all transactions between individuals, by dispensing with a faithful performance of engagements. To correct this mischief, by restraining the power which produced it, the State Legislatures were forbidden
to pass any law impairing the obligations of contracts,' that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself; and that since the clause in the Constitution must, in construction, receive some limitation, it may be confined, and ought to be confined, to cases of this description; to cases within the mischief it was intended to remedy.”
an act is not both inexpedient and unfriendly, especially when it is remembered that some of the States issue their State and municipal obligations, exempt from all taxation? Does not comity and good neighbourhood require that the instrumentalities of one State should be respected by all the others as a part of the sovereignty of the State creating the instrument in question ?
of the Taxing
It would seem to be in the nature of a self-evident propo- Limitations of
Territorial sition, although in fact it is by no means so regarded, that
Sovereignty the power of a State to tax must be exclusively limited to and Limitations person and property within it territory and legal jurisdiction. Power Co-exten“ All subjects," says Chief Justice Marshall, in giving the sive. opinion of the Supreme Court, in the case McCullough v. Maryland, “ over which the sovereign power of the State extends are objects of taxation; but those over which it does not extend are on the soundest principles exempt from taxation. * * * The sovereign power of the State extends to everything which exists by its own authority or is introduced by its permission."
“Every nation,” says Wheaton, “possesses and exercises exclusive sovereignty and jurisdiction throughout the full extent of its territory. It follows, from this principle, that the laws of every State control, of right, all the real and personal property within its territory. The second general principle is, that no State can, by its laws, directly affect, i bind, or regulate property beyond its own territory. This is a consequence of the first general principle; a different system, which would recognise in each State the power of regulating persons or things beyond its territory, would exclude the equality of rights among different States, and the exclusive sovereignty which belongs to each of them.”—(Wheaton's International Law, chap. 2, § 2; Foelix International Prisé, $$ 9 and 10.)
Protection the correlative of taxation. The correlative of taxation, furthermore, is protection; or, in other words, according to the political theory of our governments, national and State, and, in fact, of every government claiming the title to be free, taxes are the compensation which property pays the State for protection. “ Taxes are a portion which each individual gives of his property, in order to secure and have the perfect enjoyment of the remainder. Governments are established for the protection of persons and property within the limits of the State, and taxes are levied to enable the government to afford and give such protection. They are the