such meaning of those words was absolutely essential to the process of reasoning by which the conclusion in the cases referred to was reached. a Is Porto Rico a country foreign to the United States in the sense that it is not within the sovereignty and not subject to the legislative authority of the United States-is, then, the issue. In De Lima v. Biducll. 182 U. S. 1, 45 L. ed. 1041, 21 Sup. Ct. Rep. 743, and Dooley v. United States, 182 Û. S. 222, 45 L. ed. 1074, 21 Sup. Ct. Rep. 762, it was held that, instantly upon the ratification of the treaty with Spain, Porto Rico ceased to be foreign country within the meaning of the tariff laws of the United States. In the case of The Diamond Rings, 183 U. S. 176, post, 38, 22 Sup. Ct. Rep. 59, it has just been held that the Philippine islands immediately upon the ratification of the treaty ceased to be foreign country within the meaning of the tariff laws; and of course, as these islands were acquired by the same treaty by which Porto Rico was acquired, this ruling is predicated on the decisions in De Lima and Dooley, above referred to. It is true that both in the De Lima and the Dooley cases, as well as in the case of The Diamond Rings, just decided, dissents were announced. None of the dissents rested, however, upon the theory that Porto Rico or the Philippine islands had not come under the sovereignty and become subject to the legislative author ity of the United States, but were based on the ground that legislation by Congress was necessary to bring the territory within the line of the tariff laws in force at the time of the acquisition; and especially was this the case where the new territory had not, as the result of the acquisition, been incorporated into the United States as an integral part [164] thereof, though coming *under its sovereignty and sub subject, as a possession, to the legislative power of Congress. In Downes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770, the question was whether a tax imposed by Congress on goods coming into the United States from Porto Rico was repugnant to that clause of the Constitution requiring uniformity "throughout the United States" of all "duties, imposts, and excises." The contention on the one hand was that, as Porto Rico had by the treaty with Spain been acquired by the United States, Congress could not impose a burden on goods coming from Porto Rico, in disregard of the requirement of uniformity "throughout the United States." On the other hand, it was contended that, although Porto Rico had become territory of the United States and was subject to the legislative authority of Congress, it had not been so made a part of the United States as to cause Congress to be subject, in legislating with regard to that island, to the uniformity provision of the Constitution. The court maintained the latter view. While it is true the members of the court who agreed in this conclusion did so for different reasons, nevertheless, in all the opinions delivered by the justices who formed the majority of the court, it was de clared that Porto Rico had come under the sovereignty and was subject to the legislative authority of the United States. Indeed, this was controverted by no one, since the members of the court who dissented did so because they deemed that Porto Rico had so entirely ceased to be foreign country, and had so completely been made a part of the United States, that Congress could not, in legislating for that island, disregard the provision of uniformity throughout the United States. It having been thus affirmatively repeatedly determined that the export and import clauses of the Constitution refer only to commerce with foreign countries, that is, to a country or countries without the sovereignty and entirely beyond the legislative authority of the United States, and it having been conclusively settled that Porto Rico is not such a country, it seems to me the claim here made that the tax imposed by Congress in Porto Rico is an export or an import within the meaning of the Constitution is untenable. But, it is said, if Porto Rico is *not foreign, and therefore the tax [165] laid on goods in that island on their arrival from the United States is not within the purview of the import and the inhibition of the export clauses of the Constitution, then Porto Rico is domestic, and the tax is void because repugnant to the 1st clause of $ 8 of article 1 of the Constitution, conferring upon Congress "the power to lay and collect taxes, duties, imposts, and excises, but all duties, imposts, and excises shall be uniform throughout the United States." This contention, however, is but a restatement of the proposition which the court held to be unsound in Downes v. Bidwell; for in that case it was expressly decided that a provision of the statute now in question, which imposes a tax on goods coming to the United States from Porto Rico, was valid because that island occupied such a relation to the United States as empowered Congress to exact such a tax, since the requirement of uniformity throughout the United States was inapplicable. I do not propose to recapitulate the grounds of the conclusion so elaborately expressed by the opinions of the majority of the court in that case, since it suffices to say, for the purposes of the uniformity clause, that decision is controlling in this case. If the contention be that because the impost clause of the Constitution refers only to foreign commerce, therefore there was no power in Congress to impose the tax in question, or that such power is impliedly denied, the contention is un. founded and really but amounts to an indirect attack upon the doctrines announced in Woodruff v. Parham, Brown v. Houston, and Fairbank v. United States. As held in Woodruff v. Parham, the impost clause and the export clause are co-related and refer to a distinct subject, that is, foreign commerce. By what process of reasoning it can be said that because a special enumeration on a particular subject of taxation and a particular limitation as to that subject is expressed in the Constitution, therefore other and general powers of taxation not relating to the subject in question are taken away, is not by me perceived. Certainly the argument can not be that because a power has been conferred on Congress by the Constitution to levy a tax on foreign commerce, therefore the Constitution has taken away from Congress power to tax even incirectly domestic [166] commerce. Because *the grant of power as to imposts contained in the 1st clause of § 8 of article 1 of the Constitution relates to foreign commerce, there arises no limitation on the general authority to tax as to all other subjects, which flows from the other provisions of the same clause. Referring to such power-the authority to levy and collect taxes, duties, imposts, and excisesthe court, in the License Tax Cases (1866) 5 Wall. 462, 471, 18 L. ed. 497, 500, said: "The power of Congress to tax is a very extensive power. It is given in the Constitution, with only one exception and only two qualifications. Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uniformity. Thus limited, and thus only, it reaches every subject, and may be exercised at discretion." Of course, the Constitution contemplates freedom of commerce between the states, but it also confers upon Congress the powers of taxation to which I have referred, and safeguarded the freedom of commerce and equality of taxation between the states by conferring upon Congress the power to regulate such commerce, by providing for the apportionment of direct taxes, by exacting uniformity throughout the United States in the laying of duties, imposts, and excises, and by prohibiting preferences between ports of different states. Indeed, when the argument which I am considering is properly analyzed, it amounts to a denial, as I have said, of the substantial powers of Congress with regard to domestic taxation, and, as I understand it, overthrows the settled interpretation of the Constitution, long since announced and consistently adhered to. Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan, Mr. Justice Brewer, and Mr. Justice Peckham, dissenting: eign countries," with some exceptions not material here. The 3d section, by which these duties are imposed, reads: "That on and after the passage of this act all merchandise coming into the United States from Porto Rico and coming into Porto Rico from the United States shall be entered at the several ports of entry upon payment of fifteen per centum of the duties which are required to be levied, collected, and paid upon like articles of merchandise imported from foreign countries; and, in addition thereto, upon articles of merchandise of Porto Rican manufacture coming into the United States and withdrawn for consumption or sale, upon payment of a tax equal to the internal revenue tax imposed in the United States upon the like articles of merchandise of domestic manufacture;" and it was further provided that articles of merchandise manufactured in the United States coming into Porto Rico should, after entry, be subject to whatever internal revenue taxes might be in force on the island. And also that whenever the leg. islative assembly of Porto Rico should have enacted and put into operation a system of local taxation, and proclamation thereof had been made, "all tariff duties on merchandise and articles going into Porto Rico from the United States or coming into the United States from Porto Rico shall cease." Assuming that "the United States" as referred to is the United States as constituted at the date of the proclamation of the treaty, the act, explicitly recognizing the distinction between tariff duties and internal taxes, is in respect of such duties an act to raise revenue by taxing the commerce of the people of every state and territory. The fact that the net proceeds of the duties are appropriated by the act for use [10 in Porto Rico does not affect their character any more than if so appropriated by another and separate act. The taxation reaches the people of the states directly, and is national, and not local, even though the revenue derived therefrom is devoted to local purposes. Customs duties are duties imposed on imports or exports, and, according to the terms of this act, these are customs duties, not levied according to the rule of uniformity, and laid on exports as well as imports. By the 1st clause of § 8 of article 1 of the Constitution, Congress is empowered to lay and collect duties, imposts, and excises, subject to the rule of uniformity, but this court has held that customs duties are only leviable on foreign commerce (Woodruff v. Parham, 8 Wall. 123, 19 L. ed. 382), and that the uniformity required is geographical merely (Knowlton v. Moore, 178 U. S. 41, 44 L. ed. 969, 20 Sup. Ct. Rep. 747). By the 3d clause of the same section, Congress is empowered "to regulate commerce This is an action brought to recover back duties levied and collected under the Porto Rican act of April 12, 1900 (31 Stat. at L. 77, chap. 191). at San Juan, on articles shipped to that port by citizens of New York from the state of New York. Plaintiffs were [167] engaged in the business of commission merchants, having their main office in the city of New York and a branch office at San Juan. The 2d section of the act provides that, from the time of its passage, "the same tariffs, customs, and duties shall be levied, foreign nations, and among the several collected, and paid upon all articles imported into Porto Rico from ports other than those of the United States, which are required by law to be collected upon articles imported into the United States from for with states, and with the Indian tribes." The power to tax and the power to regulate commerce are distinct powers, yet the power of taxation may be so exercised as to operate in regulation of commerce. Clauses 5 and 6 of § 9 provide: same section (§ 8] empowers Congress 'to "No tax or duty shall be laid on any arti-lay and collect taxes, duties, imposts, and eles exported from any state. "No preference shall be given by any regu. lation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another." These provisions were intended to prevent the application of the power to lay ay taxes or duties, or the power to regulate commerce, so as to discriminate between one part of the country and another. The regulation of commerce by a majority vote, and the exemption of exports from duties or taxes, were parts of one of the great compromises of the Constitution. If, after the cession, Porto Rico remained a foreign country, the prohibition of clause 5 would be fatal to these duties; while if Porto Rico became domestic, then, as they are customs duties, they could not be sustained, according to Woodruff v. Parham, [169]under *the 1st clause of § 8; and were also prohibited by clause 5 of § 9, whether customs duties or not, if the application of that clause is not limited to foreign commerce. The prohibition that "no tax or duty shall be laid on articles exported from any state" negatives the existence of any power in Congress to lay taxes or duties in any form on articles exported from a state, irrespective of their destination, and, this being so, the act in imposing the duties in question is invalid, whether Porto Rico after its passage was a foreign or reputed foreign territory, a domestic territory, or a territory subject to be dealt with at the will of Congress regardless of constitutional limita tions. excises, and the 2d clause of the 10th section of the same article declares that 'no state shall, without the consent of Congress, lay any imposts or*duties on imports or ex-[170] ports, except for the purpose of executing its inspection laws.' Hence would result an exelusive power in the Union to lay duties on imports and exports, with the particular exception mentioned. But this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any state; in consequence of which qualification it now only extends to the duties on imports." Nevertheless, because the clause secured that object, it is not to be assumed that it was not also intended to secure unrestrained intercourse between the different parts of a common country. .. As was said in Gibbons v. Ogden, the right of intercourse between state and state was derived "from those laws whose authority is acknowledged by civilized man throughout the world. The Constitution found it an existing right, and gave to Congress the power to regulate it." 9 Wheat. 211, 6 L. ed. 73. From this grant, however, the power to regulate by the levy of any tax or duty on articles exported from any state was expressly withheld. In Woodruff v. Parham, 8 Wall. 132, 19 L. ed. 384, Mr. Justice Miller, in support of the conclusion that clause 1 of § 8 was confined as to customs duties to foreign commerce, said: "Is the word 'impost,' here used, in. tended to confer upon Congress a distinct power to levy a tax upon all goods or merchandise carried from one state into another? Or is the power limited to duties on foreign imports? If the former be intended, then the power conferred is curiously rendered nugatory by the subsequent clause of the 9th section, which declares that no tax shall be laid on articles exported from any state, for no article can be imported from one state into another, which is not, Confessedly the prohibition applies to foreign commerce, and the question is whether it is confined to that; in other words, whether language which embraces all articles exported can be properly restricted to particular exports. On what ground can the insertion in this comprehensive denial of power of the words "to foreign countries," thereby depriving it of effect on commerce other at the same time, exported from the former." than foreign, be justified? If the words "exported from any state" apply only to articles exported from a state to a foreign country, it would seem to follow that the broad power granted to Congress "to lay and collect taxes," for the purposes specified in the Constitution, may be exerted in the way of taxation on articles exported from one state to another. The right to carry legitimate articles of com. merce from one state to another state with out interference by national or state authority was, it has always been supposed, firmly established and secured by the Constitution. But that right may be destroyed or greatly impaired if it be true that articles may be taxed by Congress by reason of their being carried from one state to another. Undoubtedly the clause confines the power to lay customs duties or imposts to im ports only. This was so stated by Mr. Hamilton in the thirty-second number of "The Federalist: "The 1st clause of the In that case, clause 2 of § 10 was under consideration: "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; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the Treasury of the United States; and all such [171] laws shall be subject to the revision and control of the Congress." It was held that this referred to foreign commerce only, and "that no intention existed to prohibit, by this clause, the right of one state to tax articles brought into it from another." This was reaffirmed in Brown v. Houston, 114 U. S. 622, 630, 29 L ed. 257, 260, 5 Sup. Ct. Rep. 1091, 1095, and Mr. Justice Bradley said: "But in holding, with the decision in Woodruff v. Parham, that goods carried from one state to another are not imports or exports within the meaning of the clause which prohibits a state from laying any impost or duty on imports | inating taxes and duties to be laid against or exports, we do not mean to be understood one section of the country as distinguished as holding that a state may levy import or from another. export duties on goods imported from or exported to another state. We only mean to say that the clause in question does not prohibit it. Whether the laying of such duties by a state would not violate some other provision of the Constitution-that, for example, which gives to Congress the power to regulate commerce with foreign nations, among the several states, and with the Indian tribes-is a different question." That question has been repeatedly answered by this court to the effect "that no state has the right to lay a tax on interstate commerce in any form, whether by way of duties laid on the transportation of the subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on, for the reason that such taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to Congress." Lyng v. Michigan, 135 U. S. 166, 34 L. ed. 153, 3 Inters. Com. Rep. 146, 10 Sup. Ct. Rep. 726. But if that power of regulation is absolutely unrestricted as respects interstate commerce, then the very unity the Constitution was framed to secure can be set at naught by a legislative body created by that instrument. Such a conclusion is wholly inadmissible. The power to regulate interstate commerce was granted in order that trade between the states might be left free from discriminating legislation, and not to impart the power to create antagonistic commercial relations between them. The prohibition of preference of ports was coupled with the prohibition of taxation on [17]articles exported. The citizens of *each state were declared "entitled to all privileges and immunities of citizens in the several states," and that included the right of ingress and egress, and the enjoyment of the privileges of trade and commerce. Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394. And so the court, in Woodruff v. Parham, as the quotation from its opinion by Mr. Justice Miller demonstrates, did not put upon the absolute and general prohibition of power to lay any tax or duty on articles exported from any state that narrow construc. tion which would limit it to exports to a foreign country, and would concede the power to Congress to impose duties on exports from one state to another in regulation of interstate commerce. The power to lay duties in regulation of commerce with foreign nations is relied on as the source of power to pass laws for the protection and encouragement of domestic industries, and except for this clause the same effect would be attributed to the power to regulate commerce among the states. And if the prohibition be not confined to foreign commerce, then it applies to all com. merce not wholly internal to the respective states, and the destination of articles ported from a state cannot affect, or be laid hold of to affect, the result. ex In short, clause 5 operates, and was intended to operate, to except the power to lay any tax or duty on articles exported from the general power to regulate commerce, whether interstate or foreign. And this is equally true in respect of commerce with the territories, for the power to regulate commerce includes the power to regulate it, not only as between foreign countries and the territories, but also by necessary implication as between the states and territories. Stoutenburgh v. Hennick, 129 U. S. 141, 32 L. ed. 637, 9 Sup. Ct. Rep. 256. Nothing is better settled than that the states cannot interfere with interstate commerce, yet it is easy to see that if the *ex-[173] clusive delegation to Congress of the power to regulate commerce did not embrace commerce between the states and territories, the interference by the states with such commerce might be justified. Again, if in any view these duties could be treated as other than custom duties the result would be the same, inasmuch as the goods were articles exported from New York, and there was a total lack of power to lay any tax or duty on such articles. The prohibition on Congress is explicit, and noticeably different from the prohibition on the states. The state is forbidden to lay "any imposts or duties;" Congress is forbidden to lay "any tax or duty." The state is forbidden from laying imposts or duties "on imports or exports," that is, articles coming into or going out of the United States. Congress is forbidden to tax "articles exported from any state." The plain language of the Constitution should not be made "blank paper by construction," and its specific mandate ought to be obeyed. As said in Marbury v. Madison, "It is declared that 'no tax or duty shall be laid on articles exported from any state.' Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution, and only see the law?" 1 Cranch, 178, 2 L. ed. 74. Nor is the result affected by the fact that the collection of these duties was at Porto Rico. In Brown v. Maryland, 12 Wheat. 437, 6 L. ed. 685, Chief Justice Marshall said: "An impost, or duty on imports, is a custom or a tax levied on articles brought into a coun This, however, the clause, literally read, try, and is most usually secured before the prevents, and to limit its application to for- importer is allowed to exercise his rights of eign commerce, as the power to lay customs ownership over them, because evasions of duties under the 1st clause of § 8 has been the law can be prevented more certainly by limited, would defeat the manifest purpose | executing it while the articles are in its cusof the Constitution by enabling discrim- tody. It would not, however, be less an impost or duty on the articles if it were of Congress, and were therefore lawful, will to be levied on them after they were landed. not bear examination. No money can be The policy and consequent practice of levy- drawn from the Treasury except in conseing or securing the duty before or on enter- quence of appropriations made by law. This ing the port does not limit the power to that [174]bition,"unless the true meaning of the clause And so of exports. They are the things exported, the articles themselves. A duty on exports is not merely a duty on the act of exportation, but is a duty on the article exported, and the article exported remains such until it has reached its final destination. The place of collection is purely incidental, and immaterial on the question of power. But we are told that these duties were act does not appropriate a fixed sum for the benefit of Porto Rico, but provides that the money collected, and collected from citizens of the United States in every port of the United States, shall be placed in a separate fund or subsequently in the treasury of Porto Rico, to be expended for the government and benefit thereof. And although the destination of the proceeds in this way were lawful, it would not convert duties on articles exported from the states into local taxes. States may, indeed, under the Constitution, lay duties on foreign imports and exports, for the use of the Treasury of the United States, with the consent of Congress, but they do not derive the power from the general government. The power pre-existed, and it is its exercise only that is subjected to the discretion of Congress. Congress may lay local taxes in the territories, affecting persons and property therein, or authorize territorial legislatures to do so, but it cannot lay tariff duties on articles exported from one state to another, or from any state to the territories, or from any state to foreign countries, or grant a laid, not on articles exported from the state power in that regard which it does not pos of New York, but on articles imported into sess. But the decision now made recognizes My Brothers Harlan, Brewer, and We think it clear on this record that plaintiffs were entitled to recover, and that the judgment should be reversed. THE DIAMOND RINGS.† (See S. C. Reporter's ed. 176-185.) Chief Justice Marshall disposed of the suggested evasion thus: "Suppose revenue cutters were to be stationed off the coast for the purpose of levying a duty on all merchandise found in vessels which were leaving the United States for foreign countries; would it be received as an excuse for this outrage were the government to say that exportation meant no more than carrying goods out of the country, and as the prohibition to lay a tax on imports, or things [175] imported, ceased the instant they were brought into the country, so the prohibition 1. Diamond rings brought into the United to tax articles exported ceased when they were carried out of the country?" 12 Wheat. 445, 6 L. ed. 688. There is no difference in principle between the case supposed and that before us. The course of transportation is arrested until the exaction is paid. The proposition that because the proceeds of these duties were to be used for the benefit of Porto Rico they might be regarded as if laid by Porto Rico itself with the consent Duties - importation from Philippine islands - what is foreign country force of Senate resolution explaining intent of ratification of treaty effect of insurrection on title of United States to Phil ippine islands. States from the island of Luzon, in the Philippine Islands, subsequent to the proclamation of the ratification of the treaty of peace between the United States and Spain, are not Imported from a foreign country within the The title of this case in the Official Report is Fourtcen Diamond Rings, Emil J. Pepke, Claimant v. United States. NOTE. On the construction and operation of treaties-see note to United States v. The Amistad, 10 L. ed. U. S. 826. |