[624] [625] copy of the notice annexed to the petition. The plaintiffs alleged that they were not indebted to the State of Louisiana for said tax; that they were the sole owners of the coal, and were not liable for any tax thereon, having paid all taxes legally due for the year 1880 on said coal in Pennsylvania; and that the said coal was simply under the care of Brown & Jones as the agents of the plaintiffs in New Orleans, for sale. They further allege that said coal was mined in Pennsylvania, and was exported from said State and imported into the State of Louisiana as their property, and was then, at the time of the petition, and had always remained, in its original condition, and never had been or become mixed or incorporated with other property in the State of Louisiana. That when said assessment was made, the said coal was afloat in the Mississippi River in the Parish of Orleans, in the original condition in which it was exported from Pennsylvania; and the agents, Brown & Jones, notified the board of assessors of the parish that the coal did not belong to them, but to the plaintiffs, and was held as before stated, and was not subject to taxation, and protested against the assessment for that purpose. The plaintiffs averred that the assessment of the tax and any attempt to collect the same were illegal and oppressive, and contrary to the Constitution of the United States, article I, section 8, paragraphs 1 and 3, and section 10, paragraph 2; they therefore prayed an injunction to prevent the seizure and sale of the coal, which, upon giving the requisite bond, was granted. The notice of assessment, referred to in the petition and annexed thereto, was as follows: Office State Tax Collector, Upper District Parish of Orleans, No. 24 Union Street, New Orleans, Dec. 20, 1880. To Brown & Jones, Gravier and Charles Street. Sir: You are hereby officially notified, in conformity with the provisions of Act No. 77 of 1880, that the state taxes assessed to you on movable property in this parish, which amount to the sum of $352.80 (the aggregate assessed value of such property being $58,800), fell due and should have been paid in full on or before the first day of the current month; that you became a delinquent for said taxes on such first day of December; that after the expiration of twenty days from the date of this notice, I, as tax collector of the upper district of the Parish of Orleans, will advertise for sale the movable property on which the said taxes are due in the manner provided by law for judicial sales; that it the principal front door of the court-house, where the Civil District Court of said parish is held, I will sell within the legal hours for judicial sales, for cash and without appraisement, such portion of the said movable property as you shall point out and deliver to me, and in case you shall not point out sufficient property that I will at once and without further delay sell for cash without appraisement the least quantity of said movable property which any bidder will buy for the amount of taxes asessed upon movable property, with interest and costs. Respectfully, yours, J. D. Houston, State Tax Collector, Upper District Parish of Orleans." The defendant answered with a general de nial, but admitting the assessment of the tax and the intention to sell the property for payment thereof. The plaintiffs, to sustain the allegations of their petition, produced two witnesses. George F. Rootes testified that he was the general agent and manager of the business of Brown & Jones in New Orleans; that when the assessment complained of was made, the firm had paid the state taxes due upon their capital stock, and had paid state and city licenses to do business for that year; that, at the time of the assessment of the tax in question, the coal upon which it was levied was in the hands of Brown & Jones, as agents for the plaintiffs, for sale, having just arrived from Pittsburg, Pennsylvania, by flatboats, and was on said boats in which it arrived and afloat on the Mississippi River; that it was held by Brown & Jones to be sold for account of the plaintiffs by the boatload, and that since then more than half of it had been exported from this country on foreign steamships and the balance of it sold into the interior of the State for plantation use by the flatboat load. Samuel S. Brown, one of the plaintiffs, testified that the plaintiffs were the owners of the coal in ques tion; that it was mined in plaintiffs' mine in Allegheny County, Pennsylvania; that a tax of two or more mills was paid on it in Pennsyl vania as state tax thereon, in the year 1880, be ing the tax of 1880: that a tax was also paid or it to the County of Allegheny for the year 1880 that it was shipped from Pittsburg, Pennsyl vania, in 1880, and was received in New Or leans in its original condition and in its origina packages, and still owned by the plaintiffs. N other proof was offered in the case. The Louisiana Statute of April 9, 1880, Act No. 77, under which the assessment was made provided as follows: "Section 1. That for the calendar year 1880 and for each and every succeeding calenda year, there are hereby levied annual taxes amounting in the aggregate to six mills on the dollar of the assessed valuation hereafter to be made of all property situated within the State o Louisiana, except such as is expressly exempte from taxation by the (State) Constitution." The exemptions from taxation under th Constitution of Louisiana do not affect th question. Upon the case as thus made the District Cour of the parish dissolved the injunction and dis missed the suit. On appeal to the Suprem Court of Louisiana, this judgment was affirme and the case is now here by writ of error t the judgment of the Supreme Court. The following errors have been assigned : "The lower court erred in holding: 1st. That the tax in question did not violat article 4, section 2, clause 1, of the Federa Constitution. 2d. That it did not violate article 1, sectio 8, clause 3, of the same instrument. 3d. That it did not violate article 1, sectio 10, clause 2, of the same instrument." The clauses here referred to are these: 1. "The citizens of each State shall be e titled to all privileges and immunities of cit zens in the several States. 2. "The Congress shall have power to reg late commerce with foreign nations, and amor the several States, and with the Indian tribe This Act [Act No. 77 of 1880] its terms discriminate against ta of other States or the property of of other States, but subjects all w late to taxation found within the water of its own citizens or citizens of Sale whether imported from other red here, to the same rate of 1 No State shall, without the consent of | the collection of a tax on real and personal es- It is unnecessary, therefore, to consider fur- 40 the consideration of the case up the last objection raised in error, namely: that the tax mports and exports. by this court in the case of Par [supra], that the term in that clause of the Con* riares that "No State shall, wt of Congress, lay any imports or exports," does not amed from one State into to articles imported from ***nto the United States. In tr of Mobile had by ordinance, ace of its charter, authorized Juent in this case was reversed by this The Crane, 112 U.S., 69 [Bk. 28, [629] [630] [631] construed as a duty on exports when falling | goods without a license under a law of the State But in holding with the decision in Woodrufv. Parham [supra], 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 or exports, we do not mean to be understood as holding that a State may levy import or 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. This brings us to the consideration of the second assignment of error, which is founded on the clause referred to. In the case of K. R. Co. v. Husen [Bk. 24 L. ed. 529], in which another law of th State of Missouri came up for consideration which declared that no Texas, Mexican o Indian cattle should be driven, or otherwis conveyed into the State between the first of Ma and first of November, unless carried throug the State in cars, without being unloaded, th court, through Mr. Justice Strong, said: “ ] seems hardly necessary to argue at length tha unless the statute can be justified as a legitimat exercise of the police power of the State, it is usurpation of the power vested exclusively i Congress. It is a plain regulation of interstat commerce, a regulation extending to prohib tion. Whatever may be the power of a Stat over commerce that is completely internal, can no more prohibit or regulate that which interstate than it can that which is with foreig nations." In short, it may be laid down as t settled doctrine of this court, at this day, that State can no more regulate or impede commer among the several States than it can regulate impede commerce with foreign nations. The power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations. If not in all respects an exclusive power; if, in the absence of Congressional action, the States may continue to regulate matters of local interest only incidentally affecting foreign and interstate commerce, such as pilots, wharves, harbors, roads, bridges, tolls, freights, etc., still, according to the rule laid down in Cooley v. Board of Wardens, 12 How., 319, the power of Congress is exclusive wherever the matter is national in its character or admits of one uniform system or plan of regulation; and is certainly so far exclusive that no State has power to make any law or regulation which will affect the free and unrestrained intercourse and trade between the States, as Congress has left it, or which will impose any discriminating burden or tax upon the citizens or products of other States, coming or brought within its jurisdiction. All laws and regulations are restrictive of natural freedom to some extent, and where no regulation is imposed by the government which has the exclusive power to regulate, it is an indication of its will that the matter shall be left free. So long as Congress does not pass any law to regulate com- This being the recognized law, the questio merce among the several States, it hereby indi- then arises whether the assessment of the tax cates its will that that commerce shall be free question amounted to any interference with and untrammeled; and any regulation of the restriction upon the free introduction of t subject by the States is repugnant to such free- plaintiffs' coal from the State of Pennsylvan dom. This has frequently been laid down as into the State of Louisiana, and the free dispos law in the judgments of this court. In Welton of the same in commerce in the latter State; v. Missouri, 91 U. S., 282 [Bk. 23, L. ed. 350], other words, whether the tax amounted to a re Mr. Justice Field, speaking for the court, said:ulation of, or restriction upon, commerce amor "The fact that Congress has not seen fit to prescribe any specific rules to govern interstate commerce does not affect the question. Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that interstate commerce shall be free and un-subject. trammeled." This was said in a case where the As to the character and mode of the asse plaintiff in error had been convicted of selling ment, little need be added to what has alrea the States; or only to an exercise of local a ministration under the general taxing powe which, though it may incidentally affect t subjects of commerce, is entirely within t power of the State until Congress shall see fit interfere and make express regulations on t It was not a tax imposed upon the fir product, or as the product of than Louisiana, nor a tax imposed of the coal being imported or brought aka, Dor a tax imposed whilst it was transit through that State to some of destination. It was imposed after at arrived at its destination and was The coal had come to its place tal disposal or use, and was a comn the market of New Orleans. It might tat condition for a year or two ay for a day. It had become a part mass of property in the State, and Tased for the current year (1880), property in the City of New Orleans Under the law, it could not be taxed the following year. It was sub20 discrimination in favor of goods the product of Louisiana, or goods the property of citizens of Louisitreated in exactly the same manner were treated. be seriously contended, at least in ***of any congressional legislatu to that all goods which are the ber States are to be free from taxaare to which they may be carried Take the City of New York, When the assessor of taxes goes he omit from his list of taxwhich have come into the city ares of New England and New the pastures and grain fields of If he must, what will be left for And how is he to distinguish between ch are taxable and those which th the exception of goods imported antries, still in the original goods in transit to some other be not assess all property alike and in the city, being there for remaining there till used or sold, part of the great mass of its -provided always, that the teral one, and made without tween goods the product of 7 and goods the product of other the assessment should be a - and not discriminative between ates. The taxing of goods Ger States, as such, or by reason az, would be a discriminating imports, and would be a terate commerce, inconsistent freedom of trade which Conshould remain undisturbed. arrival within the State-that -ace of destination for use or trade they are subjected to a general property within the city, we bataxing can be deemed a merce which would have the • elect referred to. ... to say that if a tax collector ed at every ferry and railroad of New York, charged with aving a tax on every wagons of produce and merchandise it would be, and that it would be an encroachment upon the exclusive powers of Congress. It would be very different from the tax laid on auction sales of all property indiscriminately, as in the case of Woodruff v. Parham [supra], which had no relation to the movement of goods from one State to another. It would be very different from a tax laid, as in the present case, on property which had reached its destination, and had become part of the general mass of property of the city, and which was only taxed as a part of that general mass in common with all other property in the city, and in precisely the same manner. When Congress shall see fit to make a regulation on the subject of property transported from one State to another, which may have the effect to give it a temporary exemption from taxation in the State to which it is transported, it will be time enough to consider any conflict that may arise between such regulation and the general taxing laws of the State. In the present case we see no such conflict, either in the law itself or in the proceedings which have been had under it and sustained by the state tribunals, nor any conflict with the general rule that a State cannot pass a law which shall interfere with the unrestricted freedom of commerce between the States. In our opinion, therefore, the second assignment of error is untenable. The only remaining assignment of error to be considered is, that the tax in question violated that clause of the fourth article of the Constitution which declares that "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." As the applicability of this objection did not occur to us upon reading the record of the case, we have carefully examined the brief of the plaintiffs' counsel for light on the subject, but so far as we can understand, the point is not urged. We are certainly unable to see how, or in what respect, any equality of privileges as citizens has been denied to the plaintiffs by the imposition of the tax. Their property was only taxed like that of all other persons, whether citizens of Louisiana or of any other State or country. Not the slightest discrimination was made. The judgment of the Supreme Court of Louisi ana is affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. Cited-116 U. S., 455, 527: 117 U. S., 49. (See S. C., Reporter's ed., 635–642.) Removal of causes-suit in State Court on judg ment recovered in Federal Court-petition, allegations of. 1. In a suit in a court of New York against a corThe ety, that it would not be a reg-poration of that State upon a judgment recovered traint upon interstate com. ar as the tax should be imposed on from other States. We think zenship. See Meyer v. Delaware, etc., Co., 100 U. S., NOTE.-Removal of causes under Act of 1875-citi bk. 25, 593, note. [635] [635] [6361 in the Circuit Court of the United States for the Northern District of Ohio, merely alleging in a petition for removal, that the defendant was not an inhabitant of Ohio, and was not found there, and was not personally served with process by itself or its officers, was not sufficient to raise a defense, under § 739, R. S., of want of jurisdiction in the Circuit Court, without also negativing service of process on an agent of the defendant in Ohio and the actual appearance of the defendant to the suit. 2. Want of jurisdiction, set up to avoid a judgment, must be shown with the greatest certainty. 3. The mere fact that a suit in a State Court is brought on a judgment recovered in a Federal Court does not entitle the defendant to removal. 4. The colorable transfer of a right of action from a person against whom the defendant would have a right of removal, to one against whom he has no such right, and made to deprive the Federal Court of jurisdiction, is not a ground for removal; but such a transfer is a matter of defense to the action. [No. 105.] Argued Nov. 26, 1884. Decided May 4, 1885. This action was brought in the court below, by the defendant in error, on a judgment against the defendant in the Circuit Court of the United States for the Northern District of Ohio. Before the commencement of the trial, the defendant filed a petition for the removal of the cause into the Circuit Court of the United States for the Northern District of New York. The court refused to remove the cause and proceeded with the trial, which resulted in a verdict and judgment for the plaintiff for $3,573.44, including costs. The judgment was affirmed, on successive appeals, by the court below at General Term, and by the Court of Appeals, which court remitted the record to the court below. Whereupon the defendant sued out this writ of error. Cochran, and against the said The Provident Savings Life Assurance Society of New York, the defendant therein and herein, for the sum of $3,305,5% damages and costs. This plaintiff further alleges that on or about the 30th day of November, 1878, the said Charles Cochran, the complainant in said action and the duly assigned and transferred to this plaintiff then lawful holder and owner of said judgment, the said judgment, together with all his rights and claims thereunder and the interest due thereon. The defendant, in answer to the complaint, admitted that Cochran had taken some proceedings in the Circuit Court of the United States for the Northern District of Ohio, praying for judgment against the defendant; but averred that there was never any personal service of process, summons or petition upon the defend ant; and denied any knowledge of the recovery of any judgment as alleged in the complaint, or that Cochran had assigned the alleged judgment to Ford. The cause came on for trial in February, 1879, but before the trial commenced the defendant presented a petition for the removal of the cause to the Circuit Court of the United States for the Northern District of New York, accompanied by a bond, which was approved by the court. The petition was as follows, to wit: "Supreme Court, Rensselaer County. The Provident Savings Life Assurance Society of New York. "To said Supreme Court: Your petitioner respectfully shows to this honorable court that it The facts of the case are stated by the court. is the defendant in the above action, and a corMr. Esek Cowen, for defendant in error.poration duly incorporated under the laws of Messrs. Edwin B. Smith, Stephen G. Clarke and William Stanley, for plaintiff in error. Mr. Justice Bradley delivered the opinion of the court: This was an action brought in the Supreme Court of New York by Daniel W. Ford, the defendant in error, against the Provident Savings Life Assurance Company (the plaintiff in error) on a judgment recovered by one Charles Cochran against said Company in the Circuit Court of the United States for the Northern District of Ohio, and assigned by Cochran to the plaintiff, Ford. The complaint contained, amongst others, the following averments, to wit: "That heretofore and on or about the 12th day of December, 1876, one Charles Cochran, then a resident of the State of Ohio, in due form of law, commenced an action in the United States Circuit Court for the Northern District of Ohio against the defendant in this action, praying for a judgment against said defendant for $20,000 damages; that the defendant in said action and herein duly appeared in said action and answered the petition or complaint of said Cochran, and after trial had of the issues thus joined, at which the defendant therein and herein duly appeared, judgment was duly directed, and, subsequently, and on or about the 10th day of October, 1878, was duly entered and docketed in the office of the clerk of said United States Circuit Court for the said Northern District of Ohio, in favor of the said complainant, | the State of New York, located and having its place of business in the City of New York, and was such corporation during all the times hereinafter mentioned, and was never organized or incorporated under any law of the State of Ohio; that the above action is brought to recover the amount of a judgment alleged to have been obtained against your petitioner in the State of Ohio, by one Charles Cochran, on the 10th day of October, 1878, in the Circuit Court of the United States for the Northern District of Ohio, for the sum of $3,305.45; that said Cochran then resided and still resides in the State of Ohio; that this action is brought upon an alleged assignment of said judgment to the plaintiff above named by said Cochran, and is now pending and undetermined; that the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and involves questions arising under the laws of the United States, to wit: under section 739 of the Revised Statutes of the United States. Said section forbids Any suit to be brought by any original process before either of the United States Courts against an inhabitant of the United States in any other district than that of which he is an inhabitant, or in which he shall be found at the time of serving the writ. And your petitioner avers that the said suit in Ohio was by original process, but that the said process was never served personally upon the defendant in said action in Ohio, or upon any of its officers, nor was the defendant ever an inhabitant of Ohio or foun |