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This maxim, “ mobilia personam sequuntur,” which we call a legal fiction, when perverted from its original and beneficent purpose, therefore deserves no better than to be called a legal tie; and it is worthy of note also that in Rome, where the fiction originated, its applicability to property was never held, according to Savigny, to extend beyond Roman territory.
From the above citations and arguments, the conclusion would seem to be inevitable, that when a State assesses property situated beyond its territory and jurisdiction, and which its laws and processes are not competent or able to either. reach or protect; or assesses one of its own citizens in respect to such property ; the act has no claim to be regarded as taxation, but is simply arbitrary taking, no ways different in principle from confiscation.
the States in
It is curious to note, that prior to the recent amendment Effect of the to the Constitution of the United States, there does not appear to have been any restrictions on the power of the on the Powers of States of the Federal Union to deal with the persons and Respect to the property of their citizens in any manner it may have seemed Arbitrary
Appropriation of to a majority of their voters to be expedient.
Property. • That this was so in regard to persons is evident from the fact that, prior to the thirteenth amendment to the Constitution of the United States, a large number of the States exercised without question the power of holding a portion of their population in slavery; and in the States where slavery did not exist, the abrogation of this right and the non-exercise of the power was the voluntary act of the people themselves, and might have been resumed at any time, in case a majority had so determined.
Now, while no higher privilege obviously could be claimed for property than was granted to persons, the right of the States to deal with the property of their citizens in any way they may have seen fit, was made the subject of a decision of the Supreme Court of the United States, in the case of Baron v. the Mayor of Baltimore, January, 1833 (7 Peters, 243). In this case the city of Baltimore, in the exercise of its corporate authority over the harbour, etc., so diverted certain streams of water that they made deposits of sand and gravel near the plaintift's wharf, and thereby prevented the access of vessels to it. A writ of error was taken from the judgment of the Maryland court of appeals, refusing damages, to the Supreme Court of the United States, on the ground that this decision was in violation of the fifth amendment to the
Constitution of the United States, which prohibits the taking of private property for public use without just compensation; the plaintiff contending further, “ that this amendment, being in favour of the liberty of the citizens, ought to be so construed as to restrain the legislative power of a State, as well as that of the United States. The court, however, by Chief Justice Marshall, held that this amendment of the Constitution “is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the States ; which was equivalent to saying, viz., that if the several States choose to arbitrarily take or confiscate the property of any of its citizens, there was no higher sovereignty to restrain them.
At the close of the late civil war, however, when it was deemed desirable by Congress to impose some restrictions on the reconstructed States, so as to prevent the former disloyal element of their population, in the event of the contingency of regaining legislative power, from dealing arbitrarily or unjustly with any class of their fellow-citizens who might happen to be obnoxious, the following clause was made a part of the fourteenth amendment, and through its adoption has become the supreme law of the land : “ Nor shall any State deprive any person of life, liberty, or property, without due process of law.”
Now the force of this amendment obviously depends upon the meaning of the last clause, “ due process of law ;” and it is also clear that “due process of law” does not mean a procedure in conformity with any law which a State legislature might enact, or with any provision which the people of a State might put in their Constitution ; for if such be the interpretation of this phrase, then this clause of the fourteenth amendment referred to, would practically read as follows:“ Nor shall any State deprive any person of life, liberty, or property, except in conformity with such laws as it may enact."
The general meaning of the phrase, “ due process of law," and of the synonymous expression “law of the land," has, however, been made so often the subject of discussion and legal decision as to be in no sense a matter of doubt. Mr. Webster, in the Dartmouth College case, defined these terms as follows :—"By the law of the land is most clearly intended the general law, which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not the law of the land.” And in commenting on this definition, Justice Cooley, in his treatise on “ Constitutional Limitations,” uses this language :—This definition of Mr. Webster is apt and suitable as applied to judicial proceedings, which cannot be valid unless they proceed upon inquiry, and render judgment only after trial. It is entirely correct also in assuming that a legislative enactment is not necessarily the law of the land. The words, by the law of the land, as used in the Constitution, do not mean a statute passed for the purpose of working wrong. That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense. Due process of law,' therefore," continues Mr. Cooley, after reviewing the interpretations of various other authorities, means “such an exertion of the powers of the government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as these maxims prescribe."
“ The very idea of taxation, the very elements of the terms tax—taxation-implies that it is an imposition or levy upon persons or property in due course or order, treating all alike in the same condition and circumstances. The burden of taxation must be equalised by this mode in order to preserve its character. It is in any view taking private property for public use; and it cannot be so taken without an equivalent both as to the government or the citizens. It is not competent for the government to convert private property to public use, by way of taxation and without compensation, any more than by any other mode.”—(Redfield.)
Now the exact applicability of the fourteenth amendment in restraining the several States in the exercise of their so-called “ taxing powers,” the commissioners hold to be this :
Taxation implies protection. It is held by every authority to be the equivalent for the protection which the government affords to the property of its citizens. When, therefore, a State taxes property, either directly or indirectly, out of its territory and jurisdiction, which it cannot protect, and which its processes cannot reach, the act is not taxation, but a mere arbitrary exercise of power; not in accordance with any “process of law," and forbidden by the Constitution of the United States ; and as involving a principle under the Constitution. Furthermore, the question of restraining a State from the exercise of such arbitrary powers would seem to be one legally within the right of any citizen aggrieved, in virtue of the fourteenth amendment, to carry from the courts of his own State to the Supreme Court of the United States.
As another method by which a citizen of a State, aggrieved by an imposition of an ex-territorial tax, might test the con. stitutionality of the same, the following is also worthy of consideration :
A citizen of Massachusetts taxed on personal property situated in Illinois, might obtain a writ of certiorari in an Illinois court, and raise the question, that inasmuch as personal property is held in law to follow the person, the property in question was not taxable in Illinois. And after the courts of Illinois had rendered an adverse judgment, as they undoubtedly would, the owner taxed for the same property in Massachusetts, could obtain a writ of certiorari in the courts of that State, and raise the following questions :
1st. Want of jurisdiction in respect to the property on the part of the State of Massachusetts.
2nd. Violation of the Constitution of the United States in denying full faith and credit to the “ public acts (tax laws of Illinois) and judicial proceedings ” of a sister State.
It needs no argument to prove that under the provisions of the Constitution of the United States, above referred to, both the laws and judicial proceedings of gne State are as valid and as much to be respected in another State, as the laws and judicial proceedings of the latter State itself. If the courts of Massachusetts, following precedents in that State, should decide that personal property, situated beyond the State, follows the person residing in Massachusetts, and so disregards the judicial proceedings and public acts of Illinois, a question under the Constitution of the United States would arise, which would give jurisdiction in the United States Court. And as one and the same thing cannot occupy two places at the same time, the Federal court must finally decide in which State is the situs of the property for taxation in the case presented. The principle involved in this case would seem to be identical with an attempt on the part of a State to convict a citizen for an offence committed beyond her jurisdiction, in respect to which judgment had already been rendered in a sister State, where the offence had been committed.
As further bearing upon this subject, reference is made to the following judicial decisions : The court of errors of New York, some years ago, decided that private property could not be forcibly taken for a private road, even if compensation was made by the party benefited ; because the act was the taking property arbitrarily, and not according to due process of law.
The national bank act acknowledges, and the courts of the United States have so held, that a bank has a situs and its shares a situs where the bank is located, and not where the stockholders reside. The national bank act, therefore, discards the usual State principle of taxation, that personal pro: perty follows the owner.
The principle that two States cannot tax at the same time the same property, and that a State cannot tax property and rights to property lying beyond her jurisdiction, has been also affirmed by the Supreme Court of the United States (December, 1868), in the case of The Northern Central Railroad v. Jackson (7 Wallace, 262). The railroad corporation in question, extending from Baltimore in Maryland to Sunbury in Pennsylvania, was the result of the consolidation of four railroad companies ; one incorporated by the State of Maryland and three by the State of Pennsylvania. The latter State imposes a tax of three mills per dollar of the principal of each bond issued by said road, which tax the company, at their office in Baltimore, deducted from the coupons of the bonds of said consolidated road held by Jackson, an alien, resident in Ireland. The court, by Mr. Justice Nelson, decided adversely to the tax, on the ground that the bonds were issued upon the credit of the line of the road, a portion of which was within the jurisdiction of the State of Maryland, and that the security, bound and pledged for the payment of the bonds and of the interest on them, embraces the Maryland portion of the road equally with that portion situated in the State of Pennsylvania ; respecting which condition of affairs, the court used the following language :--
"It is apparent, if the State of Pennsylvania is at liberty to tax these bonds, that, to the extent of this Maryland portion of the road, she is taxing property and interests beyond her jurisdiction. Again, if Pennsylvania can tax these bonds, upon the same principle Maryland can tax them; this is too apparent to require argument. The consequence of this, if permitted, would be double taxation of the bondholder. The effect of this taxation is readily seen : a tax of three mills per dollar of the principal, at an interest of six per centum, payable semi-annually, is ten per centum per annum of the interest; a tax, therefore, by each State, at this rate amounts to an annual reduction from the coupons of twenty per centum ; and if this consolidation of the line of the road had extended into New York or Ohio, or into both, the deduction would have been thirty or forty. If Pennsylvania must tax bonds of this description, she must confine it to bonds issued