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equivalent both as to the government or the citizens. It is not competant 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 goverment 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, agrieved by an imposition of an ex-territorial tax,/might test the constitutionality 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 personnl 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.
2d. 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 one 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 property 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 too 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 wonld have been thirty or forty. If Pennsylvania must tax bonds of this description, she must confine it to bonds issued exclusively by her own corporations. Our conclu- '. sion is, that to permit the deduction of the tax from the coupons in question would be giving effect to the acts of the Pennsylvania legislature upon property and interests lying beyond her jurisdiction."