In the present case, indeed, complaint is | ters. Com. Rep. 595]; Adams Express Co. v. made of the action of the comptroller in de- Ohio, 165 U. S. 194 [41: 683]. It is not termining the "amount of the capital stock necessary in this case to enter into a subject employed within the state," that the so difficult, but the cases are referred to as amount fixed by him was too large. The ac-showing the distinction between corporations tion of the comptroller was subject to revi- organized to carry on interstate commerce, sion, and the corporation's complaints in re- and having a quasi-public character, and spect thereto were heard and passed upon by corporations organized to conduct strictly the supreme court of New York. The esti- private business. mate of the comptroller, in determining the amount of capital employed in the state, [664]would not be judicially interfered with unless it was clearly shown that the same was erroneous; and, even then, such errors would not present a Federal question for our consideration.

Nor can we consider the further contention that portions of the business which were made the basis of the assessment were improperly treated as business of the corporation, whereas they should have been regarded as pertaining to the personal transactions of Mr. Clay, the company's agent. The true relation of Mr. Clay to the corporation's business was one of fact, in respect to which a hearing was afforded to the corporation, and this court is in no position to enter into such an inquiry.

Again, it is said that, even assuming that the importation of crude drugs and their sale in the original packages constituted a portion of the corporate business, no tax could be imposed by the state under the doctrine of Brown v. Maryland, 12 Wheat. 419 [6: 678].

But that case is inapplicable. Here no tax is sought to be imposed directly on imported articles or on their sale. This is a tax imposed on the business of a corporation, consisting in the storage and distribution of various kinds of goods, some products of their own manufacture and some imported articles. From the very nature of the tax, being laid as a tax upon the franchise of doing business as a corporation, it cannot be affected in any way by the character of the property in which its capital stock is invested. Society for Savings v. Coite, 6 Wall. 594 [18: 897]; Provident Institution for Savings v. Massachusetts, 6 Wall. 611 [18: 907]; Pembina Consol. Silver Mining & Mill. Co. v. Pennsylvania, 125 U. S. 181 [31:650, 2 Inters. Com. Rep. 24]; Home Insurance Co. v. New York, 134 U. S. 594 [33: 1025].

When a corporation of one state, whose business is that of a common carrier, transacts part of that business in other states, difficult questions have arisen, and this court has been called upon to decide whether certain taxing laws of the respective states infringe upon the freedom of interstate commerce. It has been found difficult to prescribe a satisfactory rule whereby the public burdens of taxation can be justly apportioned between the business and agencies of such a corporation in different states and the [665]subject has been much discussed in several recent cases. Western U. Teleg. Co. v. Atty. Gen. of Massachusetts, 125 U. S. 530 [31: 790]; Pittsburgh, Cincinnati, C. & St. L. R. W. Co. v. Backus, 154 U. S. 421 [38: 1031]; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18 [35: 613, 3 In

The corporation concerned in the present litigation is of the latter character, and the case comes within the doctrine of Paul v. Virginia, 8 Wall. 168 [19: 357], and of subsequent cases affirming that one. Horn Silver Mining Co. v. New York, 143 U. S. 305 [36: 164, 4 Inters. Com. Rep. 57], may be specially mentioned, as it involved a similar question and the same statute which are before us in the present case. The Horn Silver Mining Company was a corporation of the territory of Utah, where it carried on a mining and manufacturing business. It also carried on business in the state of New York, and was there subjected to an annual tax upon its corporate franchise or business, as prescribed in the statute of the state of New York. The company refusing to pay the tax, proceedings to enforce its payment were resorted to, which resulted in the case being brought to this court, where some of the questions raised in the present case were considered and determined. The conclusions reached were that the law in question did not tax property not within the state, nor regulate interstate commerce, nor deny to the corporation the equal protection of the laws, nor impose a tax beyond the constitutional power of the state.

It is said that the operation of that portion of this taxing law, which exempts from a business tax corporations which are wholly engaged in manufacturing within the state of New York, is to encourage manufacturing corporations which seek to do business in that state to bring their plants into New York. Such may be the tendency of the legislation, but so long as the privilege is not restricted to New York corporations, it is[666] not perceived that thereby any ground is afforded to justify the intervention of the Federal courts.

The judgment of the Supreme Court of the State of New York is accordingly af firmed.

Mr. Justice White was not present at the argument, and took no part in the decision of the case.

Mr. Justice Harlan, dissenting:

It seems to me that the opinion and judg. ment in this case are not in harmony with former decisions of this court.

The comptroller of New York has imposed upon the plaintiff in error, a Michigan corporation doing business in New York, an annual tax for the year 1894 and the preceding five years, upon the sum of $90,000 "as capital employed" in the latter state. The authority for this tax was found in a statute of New York providing that "every corporation, joint-stock company, or association whatever, now or hereafter incorporated, or

So that the question in this case is, whether it is competent for New York to impose a tax upon the franchise or business [667]*of manufacturing corporations or companies, foreign or domestic, not "wholly engaged" in carrying on manufacture within its limits, while at the same time it exempts from such taxation like corporations or companies wholly engaged in carrying on manufacture in that state.

ganized, or formed under, by, or pursuant to | Lott, 8 Wall. 148, 150 [19: 387, 388], was law in this state or in any other state or decided. That case involved the validity of country, and doing business in this state, ex- a statute of Alabama declaring that "before cept only savings banks and institutions for it shall be lawful for any dealer or dealers savings, life insurance companies, banks, in spirituous liquors to offer any such liqforeign insurance companies, manufacturing uors for sale within the limits of this statė, or mining corporations, or companies wholly such dealer or dealers introducing any such engaged in carrying on manufacture or min- liquors into the state for sale shall first pay ing ores within this state, and agricultural the tax collector of the county into which and horticultural societies or associations, such liquors are introduced, a tax of fifty which exceptions, however, shall not in- cents per gallon upon each and every gallon[668] clude gas companies, trust companies, elec- thereof." This court said: "If this section tric or steam heating, lighting, and power [the one just quoted] stood alone in the legcompanies, shall be liable to and shall pay islation of Alabama on the subject of taxa tax, as a tax upon its franchise or busi- ing liquors, the effect of it would be that ness, into the state treasury annually, to be all such liquors brought into the state from computed as follows," etc. Laws of N. Y. other states and offered for sale, whether in 1889, 112th Sess. chap. 353, p. 467. the original casks by which they came into The goods sold by the plaintiff in error, the state, or by retail in smaller quantities, by its agents in New York, are manufactured would be subject to a heavy tax, while the in the state of Michigan. If the plaintiff same class of liquors manufactured in the had been wholly engaged in carrying on man-state would escape the tax. It is obvious ufacture in New York it would have been that the right to impose any such discrimiexempied by the statute from the taxes in nating tax, if it exist at all, cannot be limquestion. ited in amount, and that a tax under the same authority can as readily be laid which would amount to an absolute prohibition to sell liquors introduced from without, while the privilege would remain unobstructed in regard to articles made in the state. If this can be done in reference to liquors, it can be done with reference to all the products of a sister state, and in this mode one state can establish a complete system of non-intercourse in her commercial relations with all the other states of the Union." Again: "But while the case has been argued here with a principal reference to the supposed prohibition against taxing imports, it is to be seen from the opinion of the supreme court of Alabama delivered in this case, that the clause of the Constitution which gives to Congress the right to regulate commerce among the states was supposed to present a serious objection to the validity of the AlaIn Woodruff v. Parham, 8 Wall. 123, 140 bama statute. Nor can it be doubted that [19: 382, 387], it was contended that a pro- a tax which so seriously affects the intervision in the charter of the city of Mobile, change of commodities between the states Alabama, authorizing the collection of a tax as to essentially impede or seriously interon sales at auction, was invalid in its appli- fere with it is a regulation of commerce. And cation to auctioneers who sold in that state it is also true, as conceded in that opinion, in the original packages goods and mer-that Congress has the same right to regulate chandise the product of states other than commerce among the states that it has to Alabama. This court said: "The case be-regulate commerce with foreign nations, and fore us is a simple tax on sales of merchan- that whenever it exercises that power all dise, imposed alike upon all sales made in conflicting state laws must give way, and Mobile, whether the sales be made by a citi- that if Congress had made any regulation zen of Alabama or of another state, and covering the matter in question we need inwhether the goods sold are the produce of quire no further. That court seems to have that state or some other. There is no at- relieved itself of the objection by holding tempt to discriminate injuriously against that the tax imposed by the state of Alathe products of other states or the rights of bama was an exercise of the concurrent right their citizens, and the case is not, therefore, of regulating commerce remaining with the an attempt to fetter commerce among the state until some regulation on the subject states, or to deprive the citizens of other had been made *by Congress. But, assuming[669] states of any privilege or immunity pos- the tax to be, as we have supposed, a dissessed by citizens of Alabama. But a law criminating tax, levied exclusively upon the having such operation would, in our opinion products of sister states, and looking to the be an infringement of the provisions of the consequences which the exercise of this Constitution which relate to those subjects, power may produce if it be once conceded, and therefore void." amounting, as we have seen, to a total abo

At the same term of the court Hinson v.lition of all commercial intercourse between

Is not such legislation an injurious discrimination against the manufacturing business and the manufactured goods of other states, in favor of the manufacturing business and the manufactured goods of New York, which is forbidden by the Constitution of the United States? Let us see. The question presented for consideration is of such importance as to justify an extended reference to our former decisions.

tax upon the goods or commodities. Imposed
as the exaction is upon persons not perma-
nent residents in the state, it is not possible
to deny that the tax is discriminating with
any hope that the proposition could be sus-

the states, under the cloak of the taxing
power, we are not prepared to admit that
a state can exercise such a power, though
Congress may have failed to act on the sub-
ject in any manner whatever." Referring to
the doctrine announced in Cooley v. Philadel-tained by the court."
phia Port Wardens, 12 How. 299 [13: 996], In Welton v. Missouri, 91 U. S. 275, 279,
that there is a class of legislation of a gen- 281 [23: 347, 349, 350], the question was as
eral nature affecting the commercial inter- to the validity of a statute of Missouri de-
ests of all the states, which, from its essen- claring that whoever should deal in the sell-
tial character, is national, and which must, ing of patent and other medicines, goods,
so far as it affects those interests, belong wares and merchandise, except books, charts,
exclusively to the Federal government, the maps, and stationery, which were "not the
court said: "The tax in the case before us, growth, produce, or manufacture of this
if it were of the character we have suggested, state," by going from place to place to sell
discriminating adversely to the products of the same, should be deemed a peddler, and
all the other states, in favor of those of prohibiting him, under a penalty, from deal-
Alabama, and involving a principle which ing as such without first obtaining a license,
might lead to actual commercial noninter- no license being required for selling, "by go-
course, would, in our opinion, belong to that ing from place to place," the produce or
class of legislation, and be forbidden by the manufacture of the state. The constitution-
clause of the Constitution just mentioned."ality of that statute was sought to be main-
Upon examining the entire revenue statute
of Alabama it was found that it did not in-
juriously discriminate against the products
of other states, and the court said: "As the
effect of the act is such as we have described,
and it institutes no legislation which dis-
criminates against the people of rister
states, but merely subjects them to the same
rate of taxation which similar articles pay
that are manufactured within the state, we
do not see in it an attempt to regulate com-
merce, but an appropriate and legitimate
exercise of the taxing power of the states."

tained upon the ground that it was only a tax upon a calling. The state court took that view of the statute, and observed that it was a calling limited to the sale of mer-[671] chandise not the growth or product of Missouri. But this court, after referring to Brown v. Maryland, 12 Wheat. 419, 444 [6: 678, 687], as holding an act of Maryland to be in conflict with the Constitution of the United States because it imposed a license tax upon the importer of foreign goods, said: "So, in like manner, the license tax exacted by the state of Missouri from dealers in In Ward v. Maryland, 12 Wall. 418, 429 goods which are not the product or manu[20: 449, 452], the court held to be unconsti- facture of the state, before they can be sold tutional a statute of Maryland, making it from place to place within the state, must a penal offense for any person, "not being be regarded as a tax upon such goods thema permanent resident" of that state, to sell, selves; and the question presented is, offer, or expose for sale, within the city of whether legislation thus discriminating Baltimore, any goods, wares, or merchandise against the products of other states in the whatever, other than agricultural products conditions of their sale by a certain class of and articles manufactured in the state of dealers is valid under the Constitution of Maryland, without first obtaining a license the United States." The question thus pre[670]so to do,-*such license being fixed at $300 sented was solved by the judgment of this per year, while the license fees or taxes re- court declaring the legislation of Missouri quired of resident traders were from $15 to to be unconstitutional. It was further said: $150. The statute was adjudged to be void "If Missouri can require a license tax for because it discriminated against the people the sale by traveling dealers of goods which and products of other states. After refer- are the growth, product, or manufacture of ring to some of the former decisions, this other states or countries, it may require such court said: "Taxes, it is conceded in those license tax as a condition of their sale from cases, may be imposed by a state on all sales ordinary merchants, and the amount of the made within the state, whether the goods tax will be a matter resting exclusively in sold were the produce of the state imposing its discretion. The power of the state to the tax, or of some other state, provided the exact a license tax of any amount being adtax imposed is uniform; but the court at mitted, no authority would remain in the the same time decides in both cases that a United States or in this court to control its tax discriminating against the commodities action, however unreasonable or oppressive. of the citizens of the other states of the Imposts operating as an absolute exclusion Union would be inconsistent with the provi- of the goods would be possible, and all the sions of the Federal Constitution, and that evils of discriminating state legislation, fathe law imposing such a tax would be uncon-vorable to the interests of one state and institutional and invalid. Such an exaction, called by what name it may be, is a tax upon the goods or commodities sold, as the seller must add to the price to compensate for the sum charged for the license, which must be paid by the consumer or by the seller himself; and in either event the amount charged is equivalent to a direct

jurious to the interests of other states and
countries, which existed previous to the adop
tion of the Constitution, might follow, and
the experience of the last fifteen years shows
would follow, from the action of some of the
states."

The case of Guy v. Baltimore, 100 U. S.
434, 439-443 [25: 743, 745, 746], is much in

point. That case involved the validity of certain ordinances of the mayor and council of Baltimore based upon an act of the general assembly of Maryland authorizing the mayor and city council of Baltimore to regulate, establish, charge, and collect, to the use of the said mayor and city council, such rate of wharfage as they deemed reasonable, "of [672]and from all "vessels resorting to or lying at, landing, depositing, or transporting goods or articles other than the productions of this state, on any wharf or wharves belonging to said mayor and city council, or any public wharf in the said city, other than the wharves belonging to or rented by the state." This court, after referring to the previous cases of Woodruff v. Parham, Hinson v. Lott, and Ward v. Maryland, said: "In view of these and other decisions of this court, it must be regarded as settled that no state can, consistently with the Federal Constitution, impose upon the products of other states, brought therein for sale or use, or upon citizens because engaged in the sale therein, or the transportation thereto, of the products of other states, more onerous public burdens or taxes than it imposes upon the like products of its own territory. If this were not so, it is easy to perceive how the power of Congress to regulate commerce with foreign nations and among the several states could be practically annulled, and the equality of commercial privileges secured by the Federal Constitution to citizens of the several states be materially abridged and impaired."

it will be admitted, could not lawfully impose upon such cargo any direct public burden or tax because it may consist, in whole or in part, of the products of other states. The concession of such a power to the states would render wholly nugatory all national control of commerce among the states, and place the trade and business of the country at the mercy of local regulations, having for their object to secure exclusive benefits to the citizens and products of particular states. But it is claimed that a state may empower one of its political agencies, a mere municipal corporation representing a portion of its civil power, to burden interstate commerce by exacting from those transporting to its wharves the products of other states wharfage fees which it does not exact from those bringing to the same wharves the products of Maryland. The city can no more do this than it or the state could discriminate against the citizens and products of other states in the use of the public streets or other public highways. Municipal corporations owning wharves upon the public navigable waters of the United States, and quasi public corporations transporting the products of the country, cannot be permitted by discriminations of that character to impede commercial intercourse and traffic among the several states and with foreign nations. In the exercise of its police powers a state may exclude from its territory or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are prejudicial to the health or would endanger the lives or property of its people. But if the state, under the guise of exerting its police powers, should make such exclusion or prohibition applicable solely to articles of that kind that may be produced or manu

United States."

În the argument of that case it was contended that the city, by virtue of its ownership of the wharves in question, had the right, in its discretion, to permit their free use to all vessels landing at them with the products of Maryland; and that those oper-factured in other states, the courts would[674 ating vessels laden with the products of other find no difficulty in holding such legislation states cannot justly complain so long as they to be in conflict with the Constitution of the are not required to pay wharfage fees in excess of reasonable compensation for the use of the city's property. The court said: "This proposition, however ingenious or plausible, is unsound both upon principle and authority. The municipal corporation of Baltimore was created by the state of Maryland to promote the public interests and the public convenience. The wharf at which appellant landed his vessel was long ago dedicated to public use. The public, for whose benefit it was acquired, or who are entitled to participate in its use, are not alone those who may engage in the transportation to the port of Baltimore of the products of Maryland. It embraces, sarily, all engaged in trade and commerce [673]upon the public navigable*waters of the United States. Every vessel employed in such trade and commerce may traverse those waters without let or hindrance from local or state authority; and the national Constitution secures to all so employed, without reference to the residence or citizenship of the owners, the privilege of landing at the port of Baltimore with any cargo whatever, not excluded therefrom by or under the authority of some statute in Maryland enacted in the exertion of its police powers. The state,

neces

In Howe Machine Co. v. Gage, 100 U. S. 676, 679 [25: 754, 756], a statute of Tennessee imposing a license tax upon all peddlers violation of the Federal Constitution, beof sewing machines was sustained, as not in cause it applied "alike to sewing machines manufactured in the state and out of it."

This court said: "In all cases of this class

to which the one before us belongs, it is a test question whether there is any discrimination in favor of the state or of the citiwherever there is such discrimination it is zens of the state which enacted the law. fatal. Other considerations may lead to the same result. In the case before us, the statute in question, as construed by the supreme court of the state, makes no such discrimination. It applies alike to sewing machines manufactured in the state and out of it. The exaction is not an unusual or unreasonable one. The state, putting all such machines upon the same footing with respect to the tax complained of, had an unquestionable right to impose the burden. Woodruff v. Parham, Hinson v. Lott, Ward v. State of Maryland, Welton v. State of Missouri, supra."

Webber v. Virginia, 103 U. S. 344, 350