the states, under the cloak of the taxing | tax upon the goods or commodities. Imposed
power, we are not prepared to admit that as the exaction is upon persons not perma-
a state can exercise such a power, though nent residents in the state, it is not possible
Congress may have failed to act on the sub- to deny that the tax is discriminating with
ject in any manner whatever." Referring to any hope that the proposition could be sus-
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,
so far as it affects those interests, belong
exclusively to the Federal government, the
court said: "The tax in the case before us,
if it were of the character we have suggested,
discriminating adversely to the products of
all the other states, in favor of those of
Alabama, and involving a principle which
might lead to actual commercial noninter-
course, would, in our opinion, belong to that
class of legislation, and be forbidden by the
clause of the Constitution just mentioned."
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."

In Ward v. Maryland, 12 Wall. 418, 429
[20: 449, 452], the court held to be unconsti-
tutional a statute of Maryland, making it
a penal offense for any person, "not being |
a permanent resident" of that state, to sell,
offer, or expose for sale, within the city of
Baltimore, any goods, wares, or merchandise
whatever, other than agricultural products
and articles manufactured in the state of
Maryland, without first obtaining a license
[670]so to do,-*such license being fixed at $300
per year, while the license fees or taxes re-
quired of resident traders were from $15 to
$150. The statute was adjudged to be void
because it discriminated against the people
and products of other states. After refer-
ring to some of the former decisions, this
court said: "Taxes, it is conceded in those
cases, may be imposed by a state on all sales
made within the state, whether the goods
sold were the produce of the state imposing
the tax, or of some other state, provided the
tax imposed is uniform; but the court at
the same time decides in both cases that a
tax discriminating against the commodities
of the citizens of the other states of the
Union would be inconsistent with the provi-
sions of the Federal Constitution, and that
the law imposing such a tax would be uncon-
stitutional 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

ing of patent and other medicines, goods,
wares and merchandise, except books, charts,
maps, and stationery, which were "not the
growth, produce, or manufacture of this
state," by going from place to place to sell
the same, should be deemed a peddler, and
prohibiting him, under a penalty, from deal-
ing as such without first obtaining a license,
no license being required for selling, "by go-
ing from place to place," the produce or
manufacture of the state. The constitution-
ality of that statute was sought to be main-
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 Mis-
souri. 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
goods which are not the product or manu-
facture of the state, before they can be sold
from place to place within the state, must
be regarded as a tax upon such goods them-
selves; and the question presented is,
whether legislation thus discriminating
against the products of other states in the
conditions of their sale by a certain class of
dealers is valid under the Constitution of
the United States." The question thus pre-
sented was solved by the judgment of this
court declaring the legislation of Missouri
to be unconstitutional. It was further said:
"If Missouri can require a license tax for
the sale by traveling dealers of goods which
are the growth, product, or manufacture of
other states or countries, it may require such
license tax as a condition of their sale from
ordinary merchants, and the amount of the
tax will be a matter resting exclusively in
its discretion. The power of the state to
exact a license tax of any amount being ad-
mitted, no authority would remain in the
United States or in this court to control its
action, however unreasonable or oppressive.
Imposts operating as an absolute exclusion
of the goods would be possible, and all the
evils of discriminating state legislation, fa-
vorable to the interests of one state and in-
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

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."

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 operating vessels laden with the products of other states cannot justly complain so long as they 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, necessarily, 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,

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 por tion 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 manufind no difficulty in holding such legislation factured in other states, the courts would[674 to be in conflict with the Constitution of the

United States."

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 discrim

ination in favor of the state or of the citizens of the state which enacted the law. fatal. Other considerations may lead to the Wherever there is such discrimination it is 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

[26: 565, 567], is also very much in point. That case involved the validity of a statute of Virginia providing that "any person who shall sell or offer for sale the manufactured articles or machines of other states or territories, unless he be the owner thereof and taxed as a merchant, or take orders therefor on commission or otherwise, shall be deemed to be an agent for the sale of manufactured articles of other states and territories, and should not act as such without taking out a license therefor. No such person shall, under his license as such, sell or offer to sell such article through the agency of another, but a separate license shall be required from an agent or employee who may sell or offer to sell such articles for another. For any violation of this section, the person offending shall pay a fine of not less than fifty dollars nor more than one hundred dollars for each offense. The specific license tax upon an agent for the sale of any manufactured ar[675]ticle or machine of other states or territories shall be twenty-five dollars; and this tax shall give to any party licensed under this section the right to sell the same within the county or corporation in which he shall take out his license; and if he shall sell or offer to sell the same in any other of the counties or corporations of this state, he shall pay an additional tax of ten dollars in each of the counties or corporations where he may sell or offer to sell the same. All persons other than resident manufacturers or their agents, selling articles manufactured in this state, shall pay the specific license tax imposed by this section." §§ 45, 46.

This court said: "By these sections, read together, we have this result: The agent for the sale of articles manufactured in other states must first obtain a license to sell, for which he is required to pay a specific tax for each county in which he sells or offers to sell them; while the agent for the sale of articles manufactured in the state, if acting for the manufacturer, is not required to obtain a license or pay any license tax. Here there is a clear discrimination in favor of home manufacturers and against the manufacturers of other states. Sales by manufacturers are chiefly effected through agents. A tax upon their agents when thus engaged is therefore a tax upon them, and if this is made to depend upon the foreign character of the articles, that is, upon their having been manufactured without the state,-it is to that extent a regulation of commerce in the articles between the states. It matters not whether the tax be laid directly upon the articles sold or in the form of licenses for their sale. If by reason of their foreign character the state can impose a tax upon them or upon the person through whom the sales are effected, the amount of the tax will be a matter resting in her discretion. She may place the tax at so high a figure as to exclude the introduction of the foreign article and prevent competition with the home product. It was against legislation of this discriminating kind that the framers of the Constitution intended to guard when they vested in Congress the power to regulate commerce among the several states."

In Walling v. Michigan, 116 U. S. 446, 459-461 [29: 691, 695, 696], the principal question was as to the validity of certain[676] legislation in Michigan, which, it was contended, discriminated against the manufactured products of other states. This court held the Michigan statute to be invalid, say. ing: "It is suggested by the learned judge who delivered the opinion of the supreme court of Michigan in this case, that the tax imposed by the act of 1875 is an exercise by the legislature of Michigan of the police power of the state for the discouragement of the use of intoxicating liquors, and the preservation of the health and morals of the people. This would be a perfect justification of the act, if it did not discriminate against the citizens and products of other states in a matter of commerce between the states, and thus usurp one of the prerogatives of the national legislature. The police power cannot be set up to control the inhibitions of the Federal Constitution, or the powers of the United States government created thereby. New Orleans Gaslight Co. v. Louisiana Light, H. P. & Mfg. Co. 115 U. S. 650 [29: 516].

Another argument used by the su preme court of Michigan in favor of the va lidity of the tax is, that it is merely a tax on has an undoubted right to impose, and referan occupation, which, it is averred, the state Wheat. 419, 444 [6: 678, 687]; Nathan . ence is made to Brown v. Maryland, 12 Louisiana, 8 How. 73, 80 [12: 993, 995]; Peirce v. New Hampshire, 5 How. 593 [12: 296]; Hinson v. Lott, 8 Wall. 148 [19: 387]; Gage, 100 U. S. 676 Howe Machine Co. v. [25: 7541. None of these cases, however, sustain the doctrine that an occupation can be taxed if the tax is so specialized as to operate as a discriminative burden against the introduction and sale of the products of another state, or against the citizens of another state."

In Brimmer v. Rebman, 138 U. S. 78, 8183 [34: 862, 863, 864, 3 Inters. Com. Rep. 485], the question was as to the validity of a statute relating to the sale of meats in Virginia. This court said: "The recital in the preamble that unwholesome meats were being offered for sale in Virginia cannot exclude the question of the conformity of the act to the Constitution. . . . Is the statute now before us liable to the objection that, by its necessary operation, it interferes with the enjoyment of rights granted or secured by the Constitution? This question admits of but one answer. The statute is, in effect, a prohibition upon the sale in Virginia *of[677] beef, veal, or mutton, although entirely wholesome, if from animals slaughtered one hundred miles or over from the place of sale. We say prohibition, because the owner of such meats cannot sell them in Virginia until they are inspected there; and being required to pay the heavy charge of one cent per pound to the inspector, as his compensation, he cannot compete, upon equal terms, in the markets of that Commonwealth, with those in the same business whose meats of like kind, from animals slaughtered within less than one hundred miles from the place

A tax

of sale, are not subjected to inspection at to the sale by peddlers in Missouri of sewing all. Whether there shall be inspection or machines made in other states, and not to not, and whether the seller shall compensate be a regulation of interstate commerce. The the inspector or not, is thus made to depend decision was placed upon the ground that entirely upon the place where the animals the statute made no discrimination against from which the beef, veal, or mutton is taken, the goods of other states as compared with were slaughtered. Undoubtedly, a state may domestic goods. establish regulations for the protection of its I am unable to reconcile the opinion and people against the sale of unwholesome judgment in the present case with the prinmeats, provided such regulations do not con- ciples announced in the above cases. flict with the powers conferred by the Con- upon the capital employed by the manufacturstitution upon Congress, or infringe rights ing corporation or company is pro tanto a granted or secured by that instrument. But tax upon the goods manufactured by it. it may not, under the guise of exerting its If this be not so, there are many expressions police powers, or of enacting inspection laws, in the former opinions of this court which make discriminations against the products should be withdrawn or modified. A corand industries of some of the states in favor poration or company wholly engaged in manof the products and industries of its own or ufacture in New York has an advantage, in other states. The owner of the meats here the sale of its goods in the markets of that in question, although they were from ani- state, over a corporation or company manumals slaughtered in Illinois, had the right, facturing like goods in other states, if the under the Constitution, to compete in the former is altogether exempted from taxation markets of Virginia upon terms of equality in respect of its franchise or business, and with the owners of like meats, from animals the latter subjected to taxation of its fran-[679] slaughtered in Virginia or elsewhere within chise or business measured by the amount one hundred miles from the place of sale. of its capital employed in New York. Any local regulation which, in terms or by tal employed within its limits by corThat state may undoubtedly tax capiits necessary operation, denies this equality in the markets of a state is, when applied to but it cannot impose restrictions that will porations or companies of other states, the people and products or industries of other states, a direct burden upon commerce necessarily prevent such corporations or companies from selling their goods in New among the states, and therefore void. Welton v. Missouri, 91 U. S. 275, 281 [23: 347, tions or companies wholly engaged there in York upon terms of equality with corpora350]; Hannibal & St. J. Railroad Co. v. Hu- manufacturing goods of like kind. By this sen, 95 U. S. 465 [24: 527]; Minnesota v. statute New York says to the manufacturing Barber, above cited. The fees exacted, under the Virginia statute, for the inspection "Remove your plant to New York, and the corporations and companies of other states: of beef, veal, and mutton, the product of ani- capital employed by you in this state shall mals slaughtered one hundred miles or more be exempt from taxation. But if you perfrom the place of sale, are in reality a tax; sist in keeping your plant where it is already and 'a discriminating tax imposed by a state, established, your franchise or business shall [678]*operating to the disadvantage of the product be taxed upon the basis of the capital emof other states when introduced into the first-ployed by you in New York, while the capital mentioned state, is, in effect, a regulation in restraint of commerce among the states, and, as such, is a usurpation of the powers conferred by the Constitution upon the Congress of the United States.' Walling V. Michigan, 116 U. S. 446, 455 [29: 691, 694]. Nor can this statute be brought into harmony with the Constitution by the circumstance that it purports to apply alike to the citizens of all the states, including Virginia; for 'a burden imposed by a state upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to the people of all the states, including the people of the state enacting such statute.' Minnesota v. Barber, above cited; Robbins v. Shelby County Taxing District, 120 U. S. 489, 497 [30: 694, 697, 1 Inetrs. Com. Rep. 45]. If the object of Virginia had been to obstruct the bringing into that state, for use as human food, of all beef, veal, and mutton, however wholesome, from animals slaught-in carrying on their manufacturing in that ered in distant states, that object will be accomplished if the statute before us be enforced."

In Emert v. Missouri, 156 U. S. 296, 311 [39: 430, 434, 5 Inters. Com. Rep. 68], a Missouri statute requiring the payment of a license tax by peddlers was held to apply

of similar corporations or companies wholly
engaged in manufacturing in New York,
shall be exempt from taxation." Observe,
that the statute of New York does not apply
exclusively to corporations. It applies
equally to companies.

In my judgment, this statute cannot be
sustained in its application to the plaintiff
in error without recognizing the power of
New York, so far as the Federal Constitu-
tion is concerned, to enact such statutes as
will, by their necessary operation, amount
to a tariff protecting goods manufactured
in that state against competition in the mar-
kets there with goods manufactured in other
states. And if such legislation as is embod-
ied in the statute in question is held to be
consistent with the Federal Constitution,
why may not New York, while exempting
from taxation the franchises or business of
corporations or companies wholly engaged

state, put such taxation upon the franchise
or business of corporations or companies do-
ing business in that state, but not wholly
engaged in manufacture there, as will
amount to an absolute prohibition upon the
sale in New York of the goods manufactured
in other states? If each state in the Union

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but was

should enact a statute exempting from taxa-Henderson v. Mayor of New York, 92 U. S. tion the franchise and business of corpora- 259, 268 [23: 543, 548]. This has often tions or companies wholly engaged in carry. been adjudged by this court. "There may ing on manufacture within its limits, but be no purpose," this court has said, "upon taxing the franchise or business of corpora- the part of a legislature to violate the pro[680]tions or companies *whose manufacturing is visions of that instrument, and yet a statute carried on in other states, it is easy to see enacted by it, under the forms of law, may, that commerce among the states would be as by its necessary operation, be destructive of much at the mercy of discriminating state rights granted or secured by the Constitulegislation as it was under the Articles of tion;" in which case, "the courts must susConfederation, when, as Mr. Justice Story tain the supreme law of the land by declarwell said, the government established to con- ing the statute unconstitutional and void." serve the interests of the people of all the Minnesota v. Barber, 136 U. S. 313, 319 [34: states was competent to declare everything, 455, 457, 3 Inters. Com. Rep. 185], and auwithout power to do anything. thorities there cited. Can it be doubted While the authority of the National govern- that, whatever may have been the ostensible ment to lay duties upon goods brought from object for which the New York statute was foreign countries into this country so as to passed, the natural and reasonable effect of build up and protect American industries the statute is to withhold from goods not has been recognized, I had not supposed it manufactured in New York-and because was competent for any state of the Union they were not there manufactured that to exert its power of taxation so as to build equality in the markets of New York which, up and protect its local industries by means of injurious discriminations_against the in- Constitution to the like products of other we have often said, is secured by the national dustries of other states. I had supposed states? If the plaintiff corporation can be that the Constitution of the United States taxed on its capital employed in New York had established absolute free trade among in the business of selling its goods, manuthe states of the Union, and that freedom factured in Michigan, while capital emfrom injurious discrimination in the markets of any state, against goods manufac- ployed in New York by a like manufacturing tured in this country, was a vital principle corporation is exempted from taxation be

of constitutional law.

The opinion of the court in this case says: "If the object of the law in question was to impose a tax upon products of other states, while exempting similar domestic goods from taxation, there might be room to contend that such a distinction was constitutionally objectionable as tending to affect or regulate commerce between the states. But we think that obviously such is not the purpose of this legislation. 'Every corporation, jointstock company, or association whatever, now or hereafter incorporated, organized, or formed under, by, or pursuant to, law in this state or in any other state or country and doing business in this state, . . shall be liable to and shall pay a tax as a tax upon its franchise or business into the state treasury annually, to be computed as follows.' It will be perceived that the tax is prescribed as well for New York corporations as for those of other states. It is true that manufacturing or mining corporations wholly engaged in carrying on manufacture or mining ores within the state of New York are exempted from this tax; but such exemption is not restricted to New York corporations, [681]but includes corporations of other states as well, when wholly engaged in manufacture

cause, and only because, it is wholly engaged in manufacture in that state, is it possible to deny that such legislation injuriously discriminates against the manufactures of Michigan in favor of the like manufactures of New York?

My brethren refer to the general rule that it is competent for a state to prescribe the conditions upon which coporations of other states may do business within its limits. But I submit that that rule, however broadly[682] stated, has no application here. The New York statute has not assumed to prescribe any rule applicable alike to all manufacturing corporations or companies of other states. It exempts from taxation all corporations or companies, whether of New York or of other states, that wholly carry on their manufacturing business in New York, Thus a distinction is made between manufacturing corporations and companies by exempting from taxation on their capital employed in New York those, and those only, that wholly carry on their manufacturing in that state. Besides, this court has never, in any case, adjudged that the power of a state to prescribe the conditions upon which the corporations of other states may do business within its limits can be exerted by legislation that directly, or by its necessary I submit that the validity of state legisla-operation, discriminates injuriously against tion as affected by the Constitution of the the products of other states in favor of the United States is not to be determined al-products of such state. On the contrary, in together by what is supposed to be the "ob- the cases above cited, it has directly adjudged ject" or "purpose" of such legislation, if by that such legislation was unconstitutional. object or purpose is meant the motive which It is not necessary for me now to question controlled members of the state legislature when they enacted such legislation. In a legal sense the object or purpose of legislation is to be determined by its natural and reasonable effect, whatever may have been the motives upon which legislators acted.

within the state."

the soundness of the general proposition that
a state may prescribe the conditions upon
which corporations of other states may come
within its limits for purposes of business.
A good deal may depend upon the nature of
the business in which the foreign corporation

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