14 Mo. 237 | Mo. | 1851
delivered the opinion of the court.
It is deemed unnecessary to allude further to the statement which was agreed upon as furnishing the basis for our decision in this case, than to remark, that the point which it was mainly intended to present for our consideration, was and is, whether the act of the 12th March, 1849, in connexion with the act of the 25th March, 1845, “to license and tax merchants,” is authorized under the constitution of the United States and this State.
The circumstances under which a necessarily hasty, and, therefore, “concededly incomplete” opinion was written and rendered in the case at the last term of this court, were deemed to be such as, if not magnanimously to exempt it from all criticisms amongst those to whom the facts alluded to were known, would at least have suggested a degree of forbearant fairness in the discussion to which it gave rise. That there might be presented to the legislative department of the government then soon to assemble, the mere general considerations upon which was then, as there is yet, rested the conviction that the legislation in question was interdicted by the higher guaranty of the constitution, was the respectful purpose which was entertained, and constituted the reason which was entertained, and constituted the reason which preponderated, to induce us at that term, and under the circumstances referred to, to render an opinion at all.
The legislature having since held its session without passing any enactment upon the subject, the inference is, perhaps, but a legitimate one, that at least a majority of its members intelligently comprehend the scope and effect of the opinion and judgment alluded to, and satisfied themselves that a probable adherence to it would not reduce the aggregate revenue of the State below the requirements to which they had subjected the treasury ; for, in addition to the fact that the estimate of the Auditor for the two succeeding years assumes a surplus for the treasury several times greater than an adherence to that decision could possibly cut off, it may have been also deemed probable enough that ■a very short period would intervene, after such a shackle as is complained of was removed from our exterior commerce, before the whole sale business of our otherwise attractive commercial metropolis, exempted thereby from the discouraging burthen to which it is at present subjected, would be able so to commend itself to the intelligent retailers- and customers in.the country, as to result in at least doubling the amount
Proceeding, therefore, rather to restate and to amplify our previous positions arid conclusions, than to write or deliver a new opinion, we commence by repeating, that “by the 19th subdivision of the 13th article of our State constitution, it is declared that all property subject to taxation in this State shall be taxed in proportion to its value ; and it would seem that whether reference be had to the meaning most naturally and directly imported and conveyed by the sentence itself, or (in connexion) to the cotemporaneons concurrences which probably contributed to suggest and to shape it, onr language is perhaps inadequate to furnish a combination of words, as a text, which would less ambiguously denote and enforce an observance of the great political maxim upon which they were doubtless predicated.”
“Concerning the mere grammatical signification of the sentence, there, can probably be no disagreement of opinion ; and when it is considered in connexion with the cotemporary fact, that under the terms of our admission into the Union, the State was, on the same day the constitution was adopted, binding itself by ordinance to forbear to tax certain descriptions of property, and that in virtue of the residue of its sovereignty*256 in that respect, “all” other property was “subject to taxation,” the sentence would seem almost historically, no less than verbally, to have been predicated upon the design whicli was entertained to repudiate and repress all favoritism or oppression, in the nature of class legislation; or otherwise, by ordaining that in Missouri, as in other States, a general pío rata assessment and’taxation — as simple and comparatively unexpensive in its enactment and execution, as it was unvaryingly just and equitable in its design and in its consequences — should be interposed as the ii reversible rule of action and of right in the State they were founding.”
“Although writing here, instead of an essay upon political economy, a mere and more rigid judicial opinion, it may not, perhaps, be wholly impermissible so far to anticipate the legitimate criticism to which this virtual denial of the discretion of the legislature may subject a coordinate department of the government, as to remark that it was doubtless present to the reflection and the forecast of the statesmen who founded our system, that unless the temper and the disposition of those for whom they were acting in that day and in this, should become exempt in the future which was before them from the infirmities implied in the record of all the past, a discretion in the majority to tax according to their judgment or their will, would find its periodical possible, if not probable denoument, in the comparative (perhaps specious) exemptions of the many of the strong, at the expense of the weaker class of the community. It was doubtless, therefore, deemed and acted upon, that in order to avoid the despotism of even an unchecked majority of men of like passions with our own, a subjection and adherence to the constitutional requision we are considering — in theory and in practice in spirit and in truth — in the legislation which is direct, and in that which is indirect, constituted then, as it will ever constitute, the only reliable guaranty that “the burdens and the blessings of government, like the dews of Heaven, will fall upon all alike.”
“That such a consummation is only compassed, when each and every citizen is subjected to the same specific tax for the personal protection afforded him by the government and the laws, and for the protection afforded to his property, (let it come from whence it may,) to a tax in proportion to its value, needs but rational reflection to beget rational concession — and that the exact reverse ensues, whenever the laws are so iiamed as that the expense of protecting the property of one citizen, is raised by the imposition of taxes, either exclusively, or disproportionately, upon the property of another, need not, of course, be further demonstrated. The one is deemed to be the unvarying equity and justice*257 of the constitution — the other the varying and alternate injustice of interest, design or misapprehension.
Such being the estimate we have formed, not only of the terms of the constitutional requisition itself, but of the great and immutable principle which constitutes its basis and defence, it is to our minds insufficient to answer, that the discriminating tax complained of in the present instance, was levied through the machinery of a discriminating license, instead of the more direct manner which it sought to avoid. If it be repugnant to the constitution in the one sense, it cannot be conformable to its spirit or design in the other — so that we are left without either the offipial alternative of the moral power to uphold what we can but regard as at least an unauthorized evasion of the constitutional guaranty in question. And whilst but little argument would seem necessary to demonstrate that even the imaginary success of such devices almost invariably contemplates and compasses even a more onerous and complicated tax, of multiplied inequality, upon the people at large, than if levied upon them directly and simply — in plain terms, for a plain purpose, and once for all — it is sufficient for the purposes of this opinion, and for the judgment which must be consequent upon it, that the object being the same, and the effect the same, the decision we are called to pronounce cannot vary in the one case from what the very terms of the law would have imposed in the other.”
What, indeed, is the law of 1849, when considered in connexion with the 10th section of the act of 1845, (which it essays to re-enact and retain,) except it be at least a double ad valorem tax upon the property of merchants and grocers ? The provisions of the first section of the act of ’49 are, that “in lieu of the taxes assessed upon merchants and grocers, licensed by the existing law, there shall be levied and collected upon every merchant’s and grocer’s license, a tax at the following rate, to wit: Where the amount off merchandize received for sale by any merchant or grocer shall amount in value to as much as five hundred dollars or less, the tax shall be one dollar ; where the amount of merchandize so received shall amount in value to more than five hundred dollars and not exceed six hundred dollars, the tax shall be one dollar and twenty cents; where the amount of merchandize so received shall amount in value to more than six hundred dollars, and not exceed seven hundred dollars, the tax shall be one dollar and forty cents; and so on in the same proportion, increasing the tax at the rate of 20 cents for every additional one hundred dollars’ worth of merchandize so received.”
Sec. 2. The provisions of the preceding section shall be applicable to all merchants, commission merchants and grocers, whether trading as
The 10th section of the act of 1845, referring to the previous section, (8,) which may be called the discriminating or license section of that year, and to sec. 5 of the same act which exempts all goods which are of the “growth, produce or manufacture of this State,” is in these words :
“The collector shall collect as an ad valorem tax, such a per cent, upon all merchandize offered for sale as aforesaid, (except such as maybe offered in the packages, boxes, bales, barrels, or crates, in which they were imported, or in which they may have remained without being broken,) such an amount as may, for the time being, be paid as a tax upon real estate.”
That section therefore continuing in force, three sections thus quoted in connexion with the fifth section, which discriminates in favor of our own goods, and the general law of the 16th of February, 1847, which levies upon real estate and other general property one-fifth of one per centum on its “value,” constitute the existing enactments relating to the property or business of the defendants, and should therefore be considered in pari materia. It will be seen by their context, that they not only make the aggregate unequal tax, for the non-payment of which the defendants are indicted, to depend by their very terms upon the “value” of the merchantable “property” received by them, but that notwithstanding the sections are differently worded, the tax or per centum is substantially the same under each, being in short, under both sections, twenty cents on every hundred dollars’ worth, and consequently producing an aggregate exactly double that which is levied upon the general property of the State. In other words, the property which comes amongst us from other States is, in any view of the case, taxed twice as much as similar property in our own State is taxed.
It is perhaps not unwmrthy of remark in this connexion, that the Legislature itself seems not to have been exempt from the apprehension, that the extra tax they were thus levying upon one class of the community, or more strictly speaking, upon one description of “property,” to be paid in the end by those who consumed or used it, was at least of doubtful sanction under the constitutional guaranty we have quoted. Why, otherwise, resort to two sections cf law, each (o raise one-fifth of one per cent on the value of a merchant’s goods, instead of enacting openly and at once, in a single section, that the tax to be charged upon
It happens to the author of this opinion to know that the power to discriminate (as here complained of) between different descriptions of property “subject to taxation,” has long been denied or doubled by intelligent members of both branches of the legislature, without regard to avocation or to party; andas the question involved is conceded throughout the argument to be as much or more a political than a merely legal one, no impropriety is perceived either in thus alluding to the fact, or in briefly essaying such additional considerations as may be supposed to have been present to the mind of the convention, when adopting what is conceived to he by far the most important line in the constitution. Where, indeed, a sentence of this character is held to be open to construction at all, as the counsel for the State holds this to be, it becomes comparatively indispensable to its satisfactory solution, to summon in review the various considerations, historical and otherwise, which may be supposed to have legitimately borne upon or influenced its adoption, and thus educe, as satisfactorily as may be, the key to its proper construction.
It must be borne in mind, however, that we are discussing the question before us as one involving the power, and not the wisdom or virtue of the legislature. If it had been conceded when our constitution was
What, for instance, would restrain an interested and unchecked majority from enacting that no citizen should purchase, or sell, or hire, or even own a slave, without obtaining therefor an annual, or (as in the case before us) a semi-annual license — paying for it (and not for the property, as the fallacy runs,) such sum as the legislative wisdom or virtue may enact? What would prevent an enactment that no man should work a mine, cultivate more than a given quantity of land in hemp or tobacco, or keep more than a certain number or description of horses or cattle, without “a license therefor,” to be taxed and paid for, in either case or in all, according to the predominating interest, or the coalesced and combined interests and prejudices of an accidental and unchecked majority of the legislature? It is deemed sufficient to suggest, without amplifying or elaborating these and kindred abuses, in order to awaken such enquiry and reflection as we are fain to believe must resistlessly beget concurrence in the conclusion, that the constitutional guaranty in question is not only a farce, but an absolute fraud, if it be liable to such palpable every-day evasions.
But the very able and ingenious counsel who was employed by tiie county, and who presented in its petition for a rehearing of this cause the reasons upon which it was respectfully holden, that the restricted
It is deemed unnecessary here to enter at large into the discussion of the kindred or resulting proposition, which has also been necessarily maintained in this discussion, being an affirmance of the po ver of the legislature may raise by direct taxation all the revenue of the State from a single species of property — land or negroes for example. That question is not so strictly before us as to require an elaborate exposition of the reasons upon which we place not only our denial of any such constitutional authority, but its virtual inhibition by both the letter and the spirit of the constitution. For the present, therefore, (at least in this connexion,) it will suffice to repeat that the sentence we have quoted is perhaps as expressive and imperative as language could render it — the words “may” and “shall” with their negatives, being conceded to bé
If, therefore, under words thus imperative, and grammatically adapted to imply or signify an ever present or future present tense as to the taxation of all property” not exempted as above, the legislature may nevertheless elect what descriptions of property it will from time to time “subject” to the burdens of the treasury, (whether directly or indirectly) the plain provision of the constitution, so seemingly to the contrary, both in its letter and in the great public and private considerations upon which it is supposed to have been founded, is worth even less than the line it occupies upon the page before us.
Whilst it will not. be controverted that if the convention had remained silent as to any particular mode or basis of raising a revenue, there would have resulted to the legislature, in this State as in others, where no particular plan has been pointed out, the necessarily implied authority to levy and collect a sum sufficient to carry forward the legitimate operations of the government, in a manner conformable to their discretion alone, the case is conceived to be exactly the reverse where a basis or method has been distinctly intimated ; for thereby, according to the general rule of interpreting such delegations of authority or of duty the imperative specification of that particular method of executing it is
Acting, doubtless, upon this undeniable and only safe principle of construction, it is perceived by reference to the constitution of the neigh~ boring State of Arkansas, where the convention inserted a general provision upon the subject of taxation, substantially conforming to our own, that it was deemed necessary, in order to confer the additional power of taxing merchants and others in that State, in the manner they are taxed by existing enactments here, to insert in their constitution an express authority in these words: "The general assembly shall have power t~ tax merchants, hawkers, pedlars and privileges, in such manner as may from time to time be prescribed by law."
But for the specific authority thus quoted, which may n)t inaptly be called a proviso to the genera! guaranty or plan of raising the revenue in that State, it was doubtless foreseen that it would have been as incompetent for its legislature to enact such a law as the one we are con. sidering, as (without such proviso) it is deemed incompetent for the legislature of this State to do-and why? Not that the right of the State was overshadowed or swallowed up by any pre-existing or para~ mount federal authority, but because the people of the. States themselves in their own organic law, had intelligently and wisely withheld
The section or line we are considering' had therefore the additional reason to commend its adoption by the convention, that an adherence to its injunctions would absolutely save to the treasury, in the repression of days, or sometimes even weeks, of wrangling legislation, as much or more money than would probably be produced by any law which sought to evade or avoid it. We desire-, therefore, that it be reimpressed and and remembered in this connexion, that'the doctrine of “State rights” with which the question we are considering is sometimes unintelligently confused ahd confoundedpreiüainá'wholly untouched, although notun-considered, ih the opinion heretofore,'and now -again rendered. The question théh and now decided is, not whether the State has directly or indirectly relinquished this alleged “right” to the federal government but did her p-ople virtually, o'r'not, prohibit the exercise of such apow-¿V by their own constitution — for their own security — preserving it thereby amongst the great mass of powers and privileges not delegated to her government, but withheld and retained by her citizens, of whom the defendants and men of their class comprise a portion or part.
It is not, perhaps, wholly unnecessary in this connexion to endeavor to attain to exact, and hence correct, ideas of a few general terms in use amongst us, but having different significations, in different countries, or under different forms of government, and concerning which indefinite or incorrect impressions may come to prevail, by even as simple a process as the reading of a single book. Thus, it is held by Blackstone, an eminent British commentator, that “ sovereignty and legislature are convertible terms,” and that “one cannot exist without the other.” The idea, therefore, with those, whether in the legal profession, or out of it, who undiscriminatingly examine and imbibe alone the views of this advocate of the unchecked authority of Parliament, would, perhaps, almost, of course, be that the State of Missouri was not “sovereign” unless her legislature was sovereign ; and there might, naturally enough, spring up with such an one a consequential bias in favor of what be supposed to be the implicated “sovereignty of his State” in her relation to the government or authority of the United States. Mr. Justice Story however, an equally accomplished American commentator, makes the matter sufficiently clear under our constitutions or forms of government, by holding that “in every limited government the power of legislation i$,
The question, we repeat, therefore, when considered in reference to the rule of interpretation previously alluded to, and which of course excludes as “authority” the adjudications of other States where the power is either expressly conferred, or necessarily implied for what may be termed the silent reasons in this connexion before adverted to_ such a question, we respectfully reiterate, appears to us to admit but a single answer, and that is, that the legislature is not sovereign in the respect here claimed for it, because the people of the State have chosen that it should not be. On the contrary, in the language we have quoted and adopted, the power is yet “in the people of the State,” and will "remain there until they see fit either to amend their constitution or provide for a different expositiou of it.
It results from these premises, that whilst in other countries the privileges or prerogatives to which the advocates of this measure
We are not unaware, however, that it is the main argument in this case, that it is the “privilege” or the “occupation” of the merchant which is thus taxed, and which may be taxed, ad libitum, according to the mere discretion of the legislature; and as it is not improbable that the illegitimate latitude of signification which that term has almost imperceptibly assumed, even amongst intelligent and otherwise discriminating men, may have produced, in some measure at least, the diversity of opinion which exists in reference to the question we are considering, it becomes our duty to somewhat examine it. It is therefore in no disrespectful or assuming spirit that we deem it proper to premise, that the most earnest and solicitous investigation which it has been our occasional duty to bestow upon questions analagous to the present one, has left us without resourse or escape from the conclusion, that the judicial, no less than other departments of human government, yielding themselves, at times, either sluggishly or imperceptibly to the miscalled analogies of what are hence mis-termed “authorities” — mistaken, or deceptive, because perhaps rendered under political systems essentially distinguishable from their own — have laid the foundation for those subsequent radical errors of interpretation or construction, which can alone be arrested and corrected (if at all) by a respectful yet self-relying recurrence to great original principles, as constituting perhaps the only anchorage longer held forth for the rescue and restoration of the very system itself, as ordained by their fathers.
We have perhaps thus sufficiently denoted or suggested, that in order to render a rational or common sense exposition of what constitutes a “privilege” in this State, where the powers withheld from the government are reserved to the people at large, it is not necessary to encumber either the argument or the illustration with definitions or examples drawn from England, where, by the theory of the common law, what are there termed privileges, liberties or franchises, sprang from, and in many instances returned to' the crown. As little will it be necessary here to repeat the international signification of the term “license,” or the reasons upon which the system was originally built up amongst bel-
It results, therefore, that as under the constitution merely, the right to own and sell goods or merchandize was exactly the same as the right to own or sell any other property, such a right cannot be transmuted into a franchise or privilege, for the mere purpose, which is here alone pretended, of realizing from the property, or the business of buying and selling it, a higher revenue — so that the constitutional question is the same, or must be decided upon the same principles, and in the same manner, whether it be applied to the right of the legislature to transmute the purchase and sale of such property into a privilege or franchise, fop the purpose of doubly taxing it, or to doubly tax the merchandise at once, without such pretended transmutation. It is substantially the same question — such a privilege as may be taxed for the purpose of mere revenue, (as here,) consisting alone of what may be termed new rights, devised and created by legislative grant, of which the permission to keep a toll-bridge, a ferry, a canal or a railroad may be mentioned as instances or examples. They constitute, in short, a portion of the conceded prerogatives of the government or State, (the very point in controversy,) carved out as it were and given to an individual, an association or incorporation. For the exercise, enjoyment and protection of such a privilege, it is unquestionably competent for the legislature which grants it to prescribe the terms upon which it shall be exercised, and it would hence be no less incompetent than indelicate for the courts to assume to review either the wisdom or the discretion of such enactments. Their more grateful and appropriate duty would accordingly consist in simply enforcing them.
Except, however, in a class of cases which depend upon a principle wholly different from any which can be pretended here, (namely, the unfettered municipal or police authority of the State,) it is deemed evasive and incompetent for the legislature to single out the employment in which any class of citizens may be engaged, under the constitution, and by annexing to its exercise penal prohibitions, (as in this ease,) attempt to construe or convert its subsequent exercise or enjoyment into a “privilege” or “franchise,” to be paid for according to the unlimited discretion of the legislature. If this can, indeed, be done, we need but repeat the wholly deceptive and even contemptible
Unless, therefore, it be intended to assert and maintain that the taxing power of the legislature is virtually unlimited, it seems to us that the construction which assumes the legislative competency to create and tax “privileges” or “occupations,” except for the purposes twice before alluded to andnot pretended here, must be inevitably and wholly abandoned — leaving the license system of specific or extra taxation to its only legitimate functions under such a constitution as ours, namely, its application to new and special rights or privileges legitimately created by legislative authority, and as a measure of police or municipal regulation. Considered in reference to this class of cases, we concur in a former judgment and opinion of this court, when one of that nature was pending before it, in reference to which it was held that “ whenever the legislature prohibits any calling or profession it ceases to be a lawful pursuit; and when the legislature do not prohibit it, but allow it to be exercised by certain persons, having certain qualifications prescribed in the law, it then becomes a municipal privilege, which may be only exercised by those persons who have the qualifications and pursue the steps required by law.” (Austin vs. the State, 10 Mo. 594.)
The question there before the court, being the constitutionality of the dram-shop license, any remarks or arguments which the opinion may be supposed to contain outside of the case made, or at furthest, cases of its class, would of course be no further authoritative or binding than as they might commend themselves to the understanding or the reason of those who read them. Standing as the basis of this class of objects, upon a principle distinct from that of mere revenue, and concerning which the law-making authority is thus left comparatively without control, considerations involving the public morals, the public health and the general public security, will doubtless at once most prominently suggest themselves. No such question, however, being
No reflecting citizen need be told that in the end the consumers of the merchandise thus licensed or taxed, pay back to the merchant not only the whole amount of the tax he has been compelled to advance, but a per centum upon that amount exactly equal to the average profit on the goods themselves. In other words, the profit of the merchant is necessarily laid upon the stock of goods he has purchased, in such manner as to cover all the expenses tie has had about them, whether in first cost, freights, licenses, or any thing else. No fair and upright merchant will deny this, and if he were even to do so, he would probably find few customers accommodating enough to believe him. Suppose, then, the average profit which the merchant is compelled to lay upon his stock, in order to cover bad debts and everything else, be but twenty per cent, on his goods, we thus establish the rate of interest which the people pay to their merchant for advancing that portion of the revenue for them — thus demonstrating that the indirect and unequal method of raising revenue by that system of taxation is by far the most expensive that could well be adopted. To illustrate : Assuming that $50,000 is thus annually advanced to the collectors by the merchants, the increased aggregate addition to their bills against their customers (in consequence of the license tax) would of course be $60,000, and this sum, according to the usual course of trade and business, is payable by the customers alluded to, to their merchants, about the same time of the year that their more open and direct taxes are payable to their various collectors. It being thus apparent that every citizen who thus contributes to the treasury through his merchant, pays at least twenty cents in the dollar more than if he were to pay it in an open and direct manner to the collector — a process which all can understand, and about which there can be no mystery — what solitary substantial consideration even of policy or expediency, can be adduced for pushing such a system beyond the design of realizing from its application a more certain collection of the merely constitutional or general ratio, to which such property is also additionally subjected by the proviso in question.
But let us still further demonstrate the inequalities to which such a system is always liable, and in doing so furnish yet another reason
We will restrict ourselves, therefore, in this connexion, to a single additional example of their injustice and inequality, and even that will be introduced more than any thing else for the purpose of connecting with it a suggestion which we conceive to result as a corollary from the decision we are about to render. It is seen by the report of the Auditor, that considerably more than half the sum derived from license was last year paid by the merchants of this city. It is, indeed, most probably the fact, that the wholesale dealers alone pay one half the whole
Having thus demonstrated that under any and every view of the case, it is the consumers and not the merchants who ultimately pay these in-directj unequal and most odious assessments, whilst the latter may well enough resist, and complain as they have done, that they are compelled to advance for their customers a double or a four-fold tax upon the <£ property” which the daily wants of the country require to be supplied, just as other necessaries of life are daily supplied, we are nevertheless unable to perceive, at least as a general proposition, what just or equitable claim they could present, for having reimbursed to them, either from the treasury of the State or the treasuries of their counties, even the acknowledged excess of taxes they have thus advanced, but which the reasoning employed discloses to have been added to the cost and charged to the consumer or purchaser. This question is not, however, judicially before us, and as we suppose it probably never will be, he proposition need scarcely be further elaborated.
Recurring to the line of argument, from which we have somewhat digressed, may we not respectfully inquire why, for what sufficient end or object, was this provision inserted so formally, and so solemnly in the declaration or Bill of Rights, if the construction contended for be at all correct ? If the legislature has the power to declare what property shall be “subject to taxation,” and to impose all the burthens of government upon a single species of it, or upon one or more vocations, callings-or"professions, and exempt all others, and is restricted only to an equal ad valorem tax upon the same kind of articles, then the unlimited power to over-tax any article of property, withoufthe slightest regard to its value, must follow as a necessary inference, and this provision in the Constitution become, of course, an openly contemned absurdity, as well as a practical nullity. The legislature may declare, for instance,'that cotton fabrics shall be subject to taxation, and impose a tax of one or five per centum on such “merchandize,” and in the same act declare that woolen fabrics shall be exempt from taxation, or pay but the nominal sum which may for the. time be charged upon other general property — or vice versa — thus establishing an unjust and unequal rule of discrimination, by which property will be taxed not according, but in utter disproportion to its value. We deem that the Constitution scarce less expressly forbids this, than it does the suspension of the writ of habeas corpus; for, independent of the rule of construction heretofore alluded to, which restricts the agent to the method designated, and (where imperative, as this is,) excludes all other methods, language could scarcely be more explicit or direct, or when considered
It is, therefore, that although it will not of course be expected that in a mere judicial opinion there should be reviewed at much length the historical argument thus again suggested, it may be appropriate enough to so far condense an outline of some of the most prominent modifications which become apparent from a chronological review of the history and laws of a single government — and that the one from whose oppression our own has sprung. It will be thereby perceivable, that amongst the radical changes which the so-called British Constitution has undergone, the great question of taxation was but too fearfully and oppressively prominent in all the causes which concurred to produce it.
With the introduction of the feudal system into England, came various modes of exacting or extorting those revenues, by which the sub
The contest was at first necessarily waged against the royal claim, as the monarch in the exercise of his then asserted and generally conceded prerogative, determined for himself, without the intervention of parliament or council, the mode and the measure of taxation. It need scarcely be suggested, therefore, that during the long period in which such a prerogative was exercised, both English history and English law-books, became but too replete with the stories of the most varied, stealthy and outrageous exactions. Contenting ourselves, from necessity, with the branches, or titles alone, of some of the most prominent ones — in as much as a chapter would be necessary to explain the fla-gitious pretences, and the oppressive bearing and construction of many of them — we find them written by Blackstone, thus :
“ Custody of the temporalities of the bishop, corodies, tithes in extra parochial pláces, first fruits and tenths of spiritual preferment, rents and profits of demesne lands of the crown; the various profits and commutations growing out of military tendres; escuage; scutage ; talliage ; wine licenses ; forest laws with their amercements ; deodands ; forfeitures and amercements through courts of justice; fumago customs; prisage and butlerage; right to all royal fish ; all wrecks; ton-age and poundage ; treasure trover; waifs; estrays ; bona confiscata; escheats ; custody of idots’ estates ; purveyance; (subsequently compounded for beer license,) game laws ; servile fruits and appendages, such as aids, reliefs, primer seisins, wardships, marriages, fines for alienation, &c., &c.”
These constituted, as already intimated, a portion of the elements or subjects of British taxation, under the exercise of which a system ol servility grew up which ages have subsequently but comparatively overturned. The charter of Henry the First promised a seeming relief;
1820. By the English charters alluded to "many grievances and encroach- ments cf the Crown in the execution of forest laws" were provided against and redressed, as were also "many grievances incident to feudal tenures," including "unreasonable amercements, illegal distress by the Crown, purveyance, and pre-emption, exclusive grants of
In the time of Henry the Seventh, the celebrated Star Chamber, court or council, was remodelled with reference to the most extended oppressions, of which the more facile exercise of a tyranous and unrestrained authority over the “ property ” of the subject, may be said to have constituted the aim or the concentration of the whole. The author already alluded to informs us, that the marked feature of the reign of that prince was “that of amassing treasures in the king’s coffers by every means that could be devised,” and that all laws were framed and construed accordingly. This exercise of unjust and despotic power was resorted to under different phases and in different degrees by subsequent sovereigns, until Charles the First, regardless of the petition of right, revived the Forest Laws, upheld and enlarged the powers of the Star Chamber, and in the most unblushing and arbitrary manner resorted to levies of tonage, poundage, ship-money, &c.
We have already alluded to Hampden and others, under whom began the struggle by which that monarch first lost his life, and his house its throne. Passing thence to the Restoration, it is seen that Charles the Second was compelled to approve many laws for the removal of taxes, and to disclaim the various oppressive prerogatives insisted upon for filling the coffers of his ancestors by unjust taxation of the people.
The revolution of 168S gave birth to the “ Bill of Rights,” which again provided many wholesome restraints or checks upon the power to tax, and may hence perhaps be considered, in connection with the prior revolution of 1644, to have settled (in the main, at least) one great question of taxation, namely that the King should not tax the people without their previous consent through the Parliament or Legislature. From that period, therefore, the abuse of the taxing power may be considered, under that government as under ours, as being mainly of legis
A brief reference to parliamentary taxation is deemed sufficient for that object — it being, as already intimated, to illustrate merely the progress of a struggle which ever has existed and ever will exist, respecting the proportion in which one class of men may tax another class of men, (whether directly or indirectly,) unless the basis be definitely and definitively written down and fairly lived up to, under written charters or constitutions. Under the general names of “aids, subsidies and supplies,” the parliament imposed, amongst many others, the following revenues: Land tax, malt tax, customs or duties, tolls, tributes or tariffs, payable upon exports or imports, poundage; aliens duty, excise duty, salt duty, postage, stamp duties, house and window taxes, tax on servants, taxes on hackney coaches and chairs, duty upon offices, pensions, &e. The land tax was not assessed “in proportion to its value,” but by the least defensible and most arbitrary rules, and the same may be said of the custom or duties upon exports and imports — substantially, in one sense, the question before us here. Nor had the excise imposed by them any just reference to the “value” of the article taxed, wherefore even Blackstone was constrained to admit that “their rigor and arbitrary proceedings seemed hardly compatible with the temper of a free nation.” If, therefore, an eminent British jurist, holding as we have seen to the absolute omnipotence of the legislature of that kingdom, could not forbear a reprehension of the inequality here complained of, what would seem to be denoted as the judgment or the commentary of an American judge — and of such, most especially, a judge of last resort in a State whose constitution is believed to have been among the first in which there was specifically, and as we think unconditionally, interposed between the governed and their government, the only practicable guaranty for that absolute justice and equality of taxation, at which previous revolutions and conventions had unpropitiously, and therefore,
Not England alone, however, but France, and other European nations, under the maddening and despondent pressure of financial struggles, and financial wrongs, had witnessed a resort to popular violence as the only mode apparent to the people for a redress of their grievances, so that it has, in modern times, passed almost into political axiom, that in constitutional or comparatively limited governments, the rights of the people are most generally, because the most stealthily, assailable and assailed, through gradually increasing abuses of the taxing power, and that revolutions but follow (almost naturally, as it were,) and close for the time the overgrown and ramified abuses which come at length and inevitably to be realized in the maturity of an all-embracing and hence all-pervading development. The duty and propriety, therefore, of inserting in our bill of rights — the Magna Charta, as it has been termed, of our constitution — a sure and unambigous guaranty against even the possible abuses of such power, was doubtless as apparent to the understanding, as it seems to us to have been imperative in the will, of the wise and partiotic men who laid the foundations of our system. They had seen that in addition to the lessons of English history above condensed, the Parliament of England had asserted the unlimited right to tax their fathers, and that the power was heroically resisted, not because the comparatively paltry sum imposed was too burdensome for them to bear, but because it was the assertion of a principle — a different modification of the principle here, but still a principle — which, (L not resisted) would draw to it and with it an absolute and unrestrained control over the “property of the colonists.” It being, in short, the resistance of such a principle that eventually made us free, and can alone preserve us so, it was with wise and patriotic forecast, that the authors of our own great charter or bill of rights sought to close aasd forever bar that broad and specious doorway through which a.thousand evils had poured upon other lands, and whichlbefore their own eyes had well nigh served even the original confederacy of these States, before
We have elsewhere already remarked, that the question to be passed upon here, (and soon, thence it may be added, to be passed upon by the people,) is not whether the legislative department of the government, periodically elected by themselves, will probably lend themselves to the perpetration of any or all the wrongs enumerated or supposed, but whether the constitution of the State, shall be held by all departments of its government, to mean what it says? Upon our own minds, we are fain to confess that the subject has so grown and fixed itself, that we deem it almost inexplicable how so just and beautiful a political and legal principle should any where be held to involve even the slightest mystery, or that the force of its plain and simple application to the case before us should be less clearly apparent. That a system of taxation should have crept upon us, whether by inadvertence or design, or in part by both, by which one citizen pays, under the most favorable circumstances, more than twice as much in proportion to the value of his “property,” as his neighbor pays for other “property” of exactly the same “value’5 — the law, in the meantime, protecting one.no more than the other — and that it should, nevertheless, be considered as even arguable that such legislation is not in derogation of the constitutional injunction that “all property shall be taxed in proportion to its value,” has caused us to doubt whether it be longer possible to adapt human language to the assertion or maint’ainance of human rights. Looking in this connexion to the case made by the record alone, and giving to the State, for the sake of the argument, the benefit of the con
Whilst, therefore it would seem to have been the object of the people, in the great and all-embracing provisions which they thus caused to be engrafted upon their constitution, to provide against the proverbial and pre-existent evils of unequal taxation, with reference not only to those herein historically alluded to, but also, as having afflicted themselves under their territorial organization,
Let us suppose, howeyer, that this was the true design of the convention, and that the true reading of the clause in question should lienee be, that no citizen should be thus plundered of the .money or the property he had acquired, singly, but that it was merely authorized by the constitution, that the oppressive legislation complained of by the defendants, might be wreaked at one session upon all owners of land or slaves in a body, and at the next one upon all owners of merchandize in a body, and so on, and that (according to the construction contended for) any of these kinds of property could be held to mean “all property” — what then? Even such a construction could not redeem or help the case we are considering, because by the laws which are here alone complained of, the property of one merchant in this city may be taxed, for State and county purposes alone, a dollar and a quarter on every hundred dollars’ worth, whilst even the same description of property belonging to another merchant pays at most (and that but constructively, through the land and labor which produced it,) but the constitutional or uniform ad valorem of, at the utmost, sixty cents on the hundred dollars worth. We argue not here this question of construction or assumption, seeing that in no view of the case can merchandize which is of the “growth, produce or manufacture of this State” be held to be taxed as other merchandize is — so that even the extreme class argument of construction fails in its office here,, requiring the helping hand of the judgment by which we shall strike off the excess,
We might perhaps justifiably enough here rest and conclude the reasoning which it has become our duty to render upon the question in issue, but as other suggestions have been thrown out in connexion with the discussion the subject has elicited, which have not been perhaps as fully remarked upon as their importance may seem to deserve, it may be proper, at least not unjudicial — to yet briefly advert to the consequences and conclusions to which they but legitimately and inevitably tend.
Except as assumed in the argument, or as necessarily resulting from an affirmance of the power to pass the law under consideration, the proposition that it is competent for the legislature to subject only the property it pleases to taxation, and to levy and collect the entire revenue of the State from a single species of property, is not judicially presented for consideration here. It may not be improper, however, to
If the legislature possesses the power thus asserted for it, to designate a particular species or class of property, and renders it alone “subject to taxation,” it results, of course, as heretofore demonstrated, that they might not only levy and collect the entire revenue from slaves, (as an example,) but they might, with the same exemption from criticism (as a question of mere power) direct that it should be levied and collected off of the value of female slaves, or slaves hereafler to be brought into the State, or slaves within a given age — between twenty and fifty years, for instance — thus practically emancipating or driving away all within those ages, and indeed all ages, notwithstanding there is an express constitutional guaranty to the contrary. We allude to this description of property, and to the guaranty concerning it, mainly for the purpose of demonstrating how wholly at the mercy of an undefined an unrestrained power to tax are all other guaranties of written constitutions, and thereby the more conclusively to justify our previous assumption, that the guaranty of equal taxation, which we are here considering, constitutes by far the most vital provision in the constitution.
As little would it avail under the latitude of construction we are here proposing, that emigrants or others would invoke another constitutional guaranty intended to inhibit the passing of laws to prevent them from coming amohst us with their slaves, because the argument would be ,quite as plausible that taxation, merely, did not deprive a man of his option to own and work a slave, and therefore did not prevent him from coming or from staying here, as it is or can be in the case before us, that to tax a merchant’s property twice — in one section on the general advalorem basis, and in another section with substantially an additional advalorem — was no evasion nor invasion of the constitutional guaranty that “all property shall be taxed alike.”
The legislature might therefore do as we have been supposing, or, anon, abandoning all taxation of slaves, another legislature, differently constituted or differently combining, might assess upon horses and upon lands all the taxes of the State, decreeing thereby, that groceries and merchandize should pay none of them. In short, concede to the legislature the power to “subject” to the circumstances without which the clause in the constitution cannot attach, and that they can destroy any given property or department of business, by simply and alone subject-ng it to taxation, and a power is thereby surrendered and given up,
Looking simply to the net proceeds of a revenue system, it is doubtless conformable to the spirit of the Constitution that the Legislature should direct the assessment of such property only (if made in kind) as would yield something beyond the expenses of assessment and collection. There may also be reasons for other seeming exceptions, which need not be here discussed. The provision in question becomes, however, a reproach instead of a guaranty, if under cover of a classification, or description, or declaration of property to be taxed, the legislature may bring what citizens they please, within the circle intended to be guarded by the Constitution, and by that very act destroy the value, of their property, or cripple and prostrate their possessions or estates.
That this could not be done, even upon the general principles of American institutions, (to sny nothing of our own express guaranty) we quote from the most approved American commentator — a name which stands to the lawyer or the judge in this country, in the same, or even greater estimation, than that of Sir William Blackstone does in England. Upon page 361 of the second volume of his great work upon American law, Chancellor Kent holds the following explicit language :
“Every person is entitled to be protected in the enjoyment of his property, not only from invasions of it by individuals, but from all unequal and undue assessments on the part of the government. It is not sufficient that no tax or imposition can be imposed upon the citizens but by their representatives in the legislature. The citizens are entitled to require that the legislature itself shall cause all public taxation to be fair and equal, in proportion to the value of property, so that no one class of individuals, and no one species of property may be unequally or unduly assessed.”
As a question of power, then, may we not safely submit even to the candor and intelligence of the gentlemen who have so ably presented this question for the State.and the county, whether there is more reason for denying to the legislature the authority to describe ns taxable a por
Concede, then, this power to the legislature, and the only instrument of tyranny which is longer deprecated in ihe comparatively free governments of modern times, receives an efficiency never designed by our fathers, and too dangerous to be contemplated without the greatest solicitude. The cotton-milling and the woolen-milling business, for instance, and as furnishing the only additional example we shall adduce or amplify — these great and rival interests are in competition, each seeking, directly and indirectly, (and in the latter respect by systems and combinations sometimes the least generally understood or suspected) the favorable aid of special legislation. Suppose either to obtain the major influence with the legislature, is it not palpable that it has but tó lay its taxing hand upon the other, either directly or indirectly, (for, in the argument here, the power is assumed for both,) and thus remove it from rivalry with the interest which it designs to specially favor? Who does not perceive that in this manner all the business arrangements of the community maybe deranged and disturbed by the alternate preponderance of class interests in the halls of legislation ? Investments made upon the faith of an equal constitution and equal laws, may be rendered worthless or ruinous, because every branch of business in the community may be alternately subjected to an influence (it may be,) as remorseless as that of the usurer, a power as unlimited as the Inquisition^ and a dictation as absolute as if it were under an Austrian police! Every man’s occupation, however useful in itself, however moral in its character, however indispensable to his own support, however his entire fortune may be involved in its pursuit, is absolutely at the “tender mercy” of special legislation, through the mysterious yet all-potential mé-dium of the taxing power!
To answer that there is no danger to be apprehended of such results, is not to argue, but to beg the question — -to treat it as one of child-like -confidence in the legislature, instead of a constitutional guaranty, intended for the absolute security of all, — and the weaker classes most of all — to pass upon it, in short, as though we had no constitution, and not-as Judges sworn to support and uphold it. We will not, therefore, further dwell upon these or kindred propositions, than by respectfully resubmitting the single enquiry, whether a greater solecism or absurdity can be conceived of, than to admit, on the one hand, that the obvious
“From this quotation it will be perceived that the legislature is bound by the constitution, in fixing the State tax on property, so to regulate it that every species or description of property subject to taxation shall, according to its value, pay an equal ratio or amount of revenue to the State; or, in other words, property shall be taxed according to its value, and the tax thereon shall be equal and uniform throughout the State. This rule, as to the State revenue, is inflexible, and leaves with the legislature no power to discriminate and fix upon one description or species of property a greater tax than that fixed by law upon every other description or species of property, of equal value, subject to taxation.”
It will be perceived that in what we have thus far written, we heve not denied, but rather conceded to the legislature the power or autln ify of adopting the license system as perhaps the most reliable and c< venient means it could devise for collecting (as nearly as may be]
The sum then of the opinion here rendered, and of what is understood to be the concurring judgment of a majority of the court is, that the act of 1849, which purports fo establish a system of taxation upon merchants and grocers, “in lieu” of other enactmen's then existing, is not of itself such a departure from the basis of taxation ordained by the constitution, as to require the interposition of this tribunal in the case here made; but that the proviso to that enactment, cannot be otherwise regarded by a differently constituted majority of the bench, than as being in the nature of a saving repugnant to the constitution of this State. That constitution, therefore, being the act of the people, agreeing ani~ speaking in their original or sovereign character, and defining the permanent condition of the social alliance under which we live, it follows as a consequence, that the proviso in question must be regarded as inoperative, null and void. It will be seen to result, therefore, from a comparison of the different opinions herein rendered, that taxes may be collected from merchants and grocers under the authority of that act alone — using for that purpose the machinery merely, which is provided and directed by the act of 1845. The judgment of the criminal court will accordingly be reversed and the defendants discharged.
If the conclusions thus arrived at satisfy the understandings and the pidgment of the men of this generation, upon whom and their posterity, for good or for evil, they are alone to act and operate, it will not suffice in the attempts which may be made to weaken or impair them, that a seemingly different, concession, as to the legislative discretion which has
The appellants (defendants below) were indicted in the Criminal Court of St. Louis county, for dealing as merchants without taking out a license, as required by the statutes of the State.
The indictment contains six counts. The first charges that defendants unlawfully did receive for sale and unlawfully did deal as merchants in the selling of goods, wares and merchandise, not the growth, produce or manufacture of this State, by then and there and on divers other days and times, receiving for sale and selling as merchants as aforesaid, fifty yards of cloth, fifty yards of domestic, &c., &c., at a place then and there, and on other days and times, occupied by them for that purpose, to divers persons unknown, without having any license, &c.
The second count charges the same facts as the first, with this exception, that it omits to state that the goods, wares arid merchandise received and sold were not the growth, produce and manufacture of this State. The third count charges that the defendants did import into the State, and unlawfully receive for sale and unlawfully did deal as merchants in selling, at the place and on the days aforesaid, goods, wares and merchandise, (naming them) not the growth manufacture or produce of this State, hut of England in Great Britain; which importing, receiving and selling were in the original packages, bales and forms, as imported from England. This count also states that the duties had been regularly paid to the United States on the said goods, &c., without a license. The fourth count charges that defendants imported and received for sale, and sold on the days and times and at the place aforesaid, goods, wares and merchandise, the produce, growth and manufac
The fifth count charges that defendants imported goods, wares and merchandise into this State from sister States, and received and sold the same as aforesaid in the original packages unbroken, in which they Were received by wholesale and without a license.
The sixth Count is not materially different from the first. The defendants filed a demurrer to all the counts of the indictment. The demurrer was sustained to the second and third counts, and overruled as to all the others. A jury was then empannelled to try the issue of not guilty to the counts which had been held good on the demurrer. The evidence was as follows : The defendants at the time mentioned in the indictment were merchants, doing business in St. Louis, and received for sale at their store the goods, wares and merchandise mentioned in the indictment, in manner and form as therein charged without a license. That all the goods, &c., so received and offered for sale by defendants were imported directly by them into this State from other States of the Union and foreign countries, and were not the growth, produce or manufacture of this State, and that the defendants did exercise the business of merchants by selling the goods, &e., mentioned in the indictment, as charged in all the said counts, except the second and third counts, and that was all the evidence.
The defendants then moved the court to give the following instruction to the jury, that <sif defendants received for sale, and sold at their store in St. Louis, no other goods except such as were imported into •this State by them, directly from other Stales of the Union, the jury will find for the defendants.” This the court refused to give, and the defendants excepted. The defendants were found guilty. They after-wards filed their motion for a new trial, and in arrest of judgment, raising again the questions of the propriety of the convictions on the testimony and of the legal sufficiency of the indictment. The court decided both these motions against the defendants ; they again excepted, and bring the ease before this court for revision. A reversal of the judgment of the criminal court has been insisted on before this court, upon grounds radical and fundamental, looking to nothing less than the absolute nullity of the laws upon which the counsel for the State rely to uphold the indictment- The cause was first brought before this court at the October term, I860, at which time it was ably discussed at the bar, and was decided by the court, a majority feeling themselves bound by a sense of duty to declare the indictment insufficient to sustain the judg
So much of these acts will be here stated as will be necessary to show the points which are made upon them. By the first section of an act to regulate licenses and taxes on merchants and grocers, approved March 12th, 1849, it is provided “ that in lieu of the taxes assessed upon merchants and grocers, licensed by the existing law, there shall be levied and collected upon every merchant and grocer’s license a tax at the following rate, to-wit: Where the amount of merchandise received for sale by any merchant or grocer, shall amount in value to as much as five hundred dollars or less, the tax shall be one dollar. Where the amount so received shall amount in value to more than five hundred dollars and not exceeding six hundred dollars, the tax shall be one dollar and twenty cents, and so on in the same proportion, the tax increasing at the rate of twenty cents on every additional hundred dollars’worth of merchandise so received.” This act'does not purport by its title to be amendatory, but it is impossible to give effect to its provisions without treating it in that light. By itself, we are unable to ascertain who is a merchant or grocer, or what is the nature or duration of the license referred to. How the amount mentioned is to be ascertained ; what period of time is to be computed in its ascertainment, or what place is contemplated by the law for receiving the same, by the merchant or grocer. It might also be remarked that, standing alone, it is entirely without sanction or means of enforcement. These difficulties are all referred, by the act itself, to the existing law. I must endeavor, therefore, to find out what is the existing law. “An
Next in order, as we proceed in our examination of “ these existing laws,” stands the “ act to license and tax merchants,” approved March 2.5th, 1845. The first section of this last mentioned act declares that “ every person, or co-partnership of persons, who shall deal in the selling of goods, wares or merchandise, at any stand, store, or place occupied for that purpose, is a merchant.”
The second section imposes a penalty of from fifty to one hundred dollars for dealing without a license. The third section shows that this license shall continue only for six months and protect the person taking it only in one place. The fifth section explains what is meant by the words “ amount received for sale,” in the act of March 12th, 1849, and the words “ amount received according to the provisions of the preceding section,” etc., in the act of February 13, 1847. It declares that before any person shall receive a license to vend merchandise, he shall deliver to the collector an aggregate statement, in writing, of the “ amount” of all goods, wares and merchandise (except such as are the growth, produce or manufacture of this State,) received at bis store, etc. It is then u amount received,” as just stated, with the exception, as stated, that is taxed by the aet of 1849. The first section of the act of 1849, was intended merely to change the rate of tax assessed, and to substitute a new tax instead of the old ene, which new tax the law declares is tobe levied on persons licensed by the existing law.” The question then arises, how were licenses procured under the law as it existed prior to the 12th of March, 1849 ? The fifth section of the act of 25th March, 1845, above quoted, answers by furnishing a statement of all merchandise, (the produce, growth or manufacture of this State excepted.) I am well satisfied then, that the exception in the fifth section of the act of 25th of March, 1845, is not repealed by the act of March 12th, 1849, but was intended by that act to be recognized as a part of the existing law on which it was made to rest, as explanatory in many material particulars.
By the tenth section of the act of 25th March, 1845, it is further pro
By the first section of an act to sustain the credit of the State, approved February 16th, 1847, it is provided that the annual tax levied on all objects of taxation shall be at the following rate, viz: On all free male persons over twenty-one and under fifty-five years of age, thirty-seven and a half cents, and all other objects of taxation now: made taxable by law, one-fifth of one per centum on the assessed value thereof. The second section of the act, March 12th, 1849, abolishes the distinction between wholesale and retail dealers which had previously obtained. These are all the statutes appertaining to this subject. it is a well settled rule of construction that all legislative enactments in pari materi not repugnent to each other must be regarded as one act, and construed accordingly.
Proceeding on in this view, there seems to be no difficulty in identi-. fying in a few words the leading features of these several acts : 1st. There is imposed on each merchant’s and grocer’s license where the amount received for sale at his place of business during the six months previous to his application is five hundred dollars or less, a tax of one dollar ; where it is more than five hundred dollars and not exceeding six hundred dollars, a tax of one dollar and twenty cents, and twenty cents for each additional hundred dollars, provided the same has been pro~ duced, manufactured or grown out of the State of Missouri; but if the merchandise, &c., be of Missouri growth, manufacture or pi-oduce, it may be sold without license or tax.
2d. The same merchandise when of foreign production, &c., is to be taxed again by an ad valorem tax of twenty cents on the one hundred dollars worth as soon as offered for sale in Missouri, provided it be not so offered in the packages, bales, boxes, barrels or crates in which it was imported, or may have remained unbroken; while no such tax is imposed on the sale of the same kind of goods or merchandise produced, grown or manufactured in Missouri.
3d. The said taxes so imposed are not laid with the view to any po». lice regulation, hut are purely revenue measures, and fall upon every species of goods, wares and merchandise which can enter into the commerce of the world, provided the same are produced, grown or manufactured out of the State of Missouri.
Can the legislature, for revenue purposes, impose upon goods introduced into the markets of Missouri from beyond her limits, other and different and higher taxes than they impose on the same kind of goods produced, grown and manufactured in the State? If these questions can be answered in the affirmative, then there are other propositions important to be looked at. The power to lay upon the foreign article the discriminating burthen of one cent additional tax above the general tax rate of the State, establishes the power to add the second cent, and so with the third. Discriminating taxation is restrictive in its effects on the traffic in the thing that is thus taxed, and the restriction which a small discriminating tax produces becomes exclusion when you raise the discriminating tax high enough. The power, therefore, to impose upon the beef, pork and lard of our sister State of Illinois, when introduced here for sale, a tax or duty not paid on the sale of these articles produced in Missouri, is a power to exclude in toto from the channels of commerce in this State all these foreign articles ; of course all other foreign productions can be expelled and driven out of the State in the same way.
Has, then, the legislature of the State of Missouri the power to lay an embargo on trade between her borders and the rest of the world? This proposition has not been asserted as the ground on which the State rests her cause, but after the best reflection I have been able to give to the views which she seeks to maintain, I am unable to see how the State, with the course of reasoning here insisted on, is to stop short of this position.
The appellants (the defendants below) resist both the premises and
First. That congress shall have power to lay and collect taxes, duties, imposts and excises to pay the debts and to provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.
Second. To regulate commerce with foreign nations, among the several States and with the Indian tribes.
Third. No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation 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.
Fourth. 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 proceeds of all duties and imposts laid on imporfs or exports by any State, shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of congress.
The question arises, what is commerce? We are informed by Justice Story, in his commentaries on the constitution, vol. 2, page 506, that it is ‘traffic,’ ‘buying and selling,’ ‘interchange of commodities,’ and that it includes navigation and intercourse.
We are also informed by the same author, on the same page, that to regulate comm-rce is to prescribe the rules by which commerce is to be governed.' It will be readily perceived, therefore, that all the foregoing provisions of the federal constitution concern the subject of commerce, and are intended, in one way or other, either to grant or restrict the power of controlling or interfering with it; and after considering these full and explicit provisions there would appear to be little room to question that the discriminating tax imposed by the statutes under consideration on foreign merchandize, is a regulation of commerce on the part of the State in the proper meaning of the federal constitution— and that the regulation is attempted to be made, not merely of commerce between the States, but with foreign nations. The congress of the United States, by virtue of duties on imports, regulates commerce, in this very way restricts and diminishes the amount of importation»,
All this is done by force of a discrimination in the amount laid on articles of trade. Tariffs, in the regulation of trade, are more potent engines than armies or navies. Their silent but mighty influences are felt in every citizen’s private dwelling, extend over seas and oceans, and reach to the ends of the earth. This is a truth well known to, and inconstant employment by all civilized nations. Nor are these, simple facts and principles at all controverted by the counsel for the State in this case. They admit that congress has the power to regulate commerce with foreign nations, and between the States, and that these acts of the Missouri legislature are regulations of commerce, but they insist that the same power also belongs the States, and may be exercised by them where congress has failed to pass any law on the same subject on which the States attempt to legislate. In other words, that the power to regulate commerce is in a manner concurrent. The congress can take up and grasp the whole, but not doing so the States may take up and appropriate what congress neglects or prefers not to exercise.
I will not deny that there are jurists in this country who have expressed the opinion that the State government possessed the power to participate with congress in the regulation of commerce, and it has been sometimes inferred that the power to regulate commerce vested in congress, was dormant and inoperative until exercised by congress, and in the meantime the power returned to the States to be employed by them. But it is believed that such opinions have always been thrown out in cases where some plainly acknowledged State power was to be upheld, and which was confounded in the mind of the writer with a regulation of commerce, when in fact no such thing was in issue. Now, I have never doubted the power of the State government to do many things which more nearly or remotely concern the subjects and operations of commerce. The power of the State authorities to protect the lives of persons engaged in the trade within its borders, to preserve health or morals, to protect property, promote education, punish crime, restrain practices and habits leading to vice, to make internal improvements by constructing roads, dams, bridges, canals, wharves, ferries, •&e. To raise revenue by taxation for these purposes or any others ap-pertaining to the most ample and liberal police power requisite for the internal government and prosperity of the State, is inherent in its sovereignty, and is as well established by the dictates of reason as the authority of adjudged cases.
But, when a State is employed in the exercise.of one of these powers,
Many adjudged cases have been referred to, and relied on by counsel, as asserting the power here contended for on the part of the State, But, on careful examination, it will be found, as I think, that they rest on nothing but the general police power which has been already fully conceded. I will briefly notice some of these cases: In the Commonwealth vs. Kimball, 24 Pick., 360—a statute of Massachusetts, forbidding the sale of all ardent spirits in less quantity than 28 gallons, on pain of $20 fine, and providing that noJicensé should be issued without a certificate of the selectmen as to the good moral character of the applicant, and that the public good required it, and the payment of $1 to the clerk as a fee for issuing the license, was adjudged no violation of the constitution of the United States, because the said statute (say the court) fell within that of powers necessary to the regulation of the police, morals, health, &c., of the community. In Breed vs. Commonwealth, 4 Pick., 460—a statute athorizing the building of a bridge over a navigable stream, was declared constitutional, as in affirmance of a power to authorize improvements required by convenience and necessity of the people. In Beall vs. State, 4th Blackford, 107—a statute of Indiana, was pronounced no violation of the constitutipn of the United States, which provided that no person should vend any merchandize not the product of the United States, without a license, on pain of $100.
It does not appear from anything in the case, what the tax on the foreign article was, or whether it exceeded the tax on the domestic article or not. The court say, “the act does not interfere with the power to ‘regulate commerce.5 55 “It contemplates no restriction,55 “imposes no burdens on commerce,” “nor can it be tortured into a transit duty.” There is nothing in the caseto countenance, ever so remotely, the idea of a discriminating tax on foreign productions over and above the do
But the decision, which has been probably more strenuously relied upon by the State, is Nathans vs. State of Louisiana, 8 Howard, 73.. Nathans was indicted under a law which required every “exchange broker” in Louisiana, whether dealing in foreign or domestic bills, to pay a tax of $250. There was no discrimination, no exemption in the case, all were taxed alike. Nathans’ counsel contended that, as he dealt in foreign exchange, he was exempt from all taxation, but the court ruled otherwise. The court in this case, remark, “No one can claim an exemption from a general tax on his business, within a State, on the ground that the products may be used in cpmmerce.” But what similitude is there between the case at Bar and Nathans? He was taxed like every other person dealing in exchange in Louisiana, and was subjected to the same burthens as other citizens engaged in the same avocation, and no more. Had he been taxed 20 or 40 cents on the $100 worth, where other brokers were taxed nothing, had all foreign capital in his hands been subjected to a heavy discriminating bur-then, and crippled in its employment, or expelled the State, the cases would have been moz-e alike.
The next case is Austin’s, (10 Missouri Rep. 591,) and claims For the legislature of Missouri the power of placing under restrictions any trade or profession whatever. It is by no means necessary to call in question the correctness of that doctrine. Grant that such a power exists, whenever it 'is the general policy of the State to exercise it. It is enough, that the trade in the articles mentioned in this indictment, has not been abolished or restricted. On the other hand, the policy of the State would seem to encourage and promote the traffic, when produced at home, by means of the very law we are now considering. The case, therefore, is not in point.
The case of the Black Bird Marsh Creek Company vs. Wilson, 2 Peters, 250, involved the constitutional power of a state to authorize tine building of a dam, &c., and when the opinion of the court is construed with reference to the subject before them, it cannot be made to establish more than the power of a State, to regulate improvements, when no intention is indicated thereby to interfere with commerce.
In the celebrated cases, known as the License Cases, in which the statutes of New Hampshire, Massachusetts and Rhode Island, were called in question, the matter for adjudication was, whether these States had the power to restrain the use of ardent spirits by laws, in which no discrimination was made between foreign and domestic liquors, no tax
I belive it should not be doubted that every one of these is merely in affirmance of the police power; and if it be true, that in some instances the proper distinctions were not made by individual judges, cr remarks were thrown out, tending to confound such powers with the power to regulate commerce with foreign nations and between the States; and thence deduce the consequence of concurrent jurisdiction in both governments over these great and delicate interests; it must yet be observed, that these sentiments have found utterance only on questions of the poliee; and it will be time enough to regard them as authority when they have been applied to regulations of commerce, properly as such, and received the judicial sanction of the courts of the last resort.
If the State of Missouri can restrict or expel the productions of other States from her borders, they can retaliate, by similar enactments, against her productions; and to suppose they will not do so, is to disregard the dictates of experience.—2 Story’s Const. 511. They will do so, and that speedily, and the effect of their opposing regulations and retaliative measures, will lead to consequences which no friend of this country can desire to see.
It may be proper here to remark that there is no clause in the Federal Constitution the history of which is more distinctly traced than that which gives to the general government the power to “regulate commerce.” The want of such a power in a common head, to be employed with energy and unity of purpose, was the bane of the confederacy. Mr. Madison says, (Papers 129,) “The want of authority to regulate commerce had produced in foreign nations — particularly Great Britain —a monopolizing policy injurious to the trade, of the United States, and destructive to their navigation.” “The same want of a general power over commerce lead to an exercise of the power separately by the States, which not only proved abortive, but engendered rival, conflicting and angry regulations.” 'The States having ports for foreign commerce taxed and irritated adjoining States trading tl rough them, us New York, Pennsylvania, Virginia and South Carolina. “Some of the States taxed imports from others, as from Massachusetts, which complained in a letter to the Governor of Virginia, and doubtless to those
When it had become manifest that the existing condition of commerce would not only lead to a dissolution of the confederacy, but probably to bloodshed, a convention of delegates was held at Annapolis, under a calling of the legislature of Virginia, whose duty it was made to “examine the relative situations and trade of the said States to consider how far a uniform system in their commercial regulations might be necessary to their common interest and permanent harmony.” Madison Papers, 112, 113.
The deliberations of this convention, which met to discuss the single subject of commerce, lead to other movements, that finally brought about the assembling of a greater convention, and the entire re-organization of the government into its present form.
This thing of imposing duties on the productions of sister States was then regarded as a part of commerce. This appears by the proceedings at Annapolis and in the debates of the. convention, and the whole cotemporaneous history. It is admitted in this case by' both parties to be such. When, therefore, the proposition to give to Congress power to “regulate commerce with foreign nations, and between the States,” passed by the convention without a division and without any qualification or language sufficiently broad as to vest the whole power, I am compelled to believe that such was the intention. 2. Story Const. 508.
Chancellor Kent, 1 vol. Com. page 269, lending his sanction to an opinion of Justice Story, informs us, “That the commercial system of the United States has been employed sometimes for the purposes of revenue, sometimes for prohibition, sometimes for retaliation and commercial reciprocity, sometimes to lay embargoes, sometimes to encourage domestic navigation and shipping and mercantile interests by bounties, discriminating duties by special preferences and privigeles; sometimes to regulate intercourse, with a view to mere political objects, such as to repel aggresiion, increase the pressure of war, vindicate the rights of neuti’al sovereignty; and in all these cases the right and duty have been conceded to the national government by the unequivocal voice of the people.”
Now, conceding a concurrent power in the States with the general government to interfere in all these important matters, we arepexmitted to obtain a startling view of the extent of the authority which is claimed for them in this cause. That such powers should belong to the general government, seems to be as easily perceived on the one hand, as it is
To return again to the language of the constitution, when it declares that Congress shall have power to ‘‘regulate commerce,” I wish to he informed by what rule of construction it is that part of the power to .regulate is retained by the grantors ? If a mere agency is created, then •all the power is retained in one sense, for the agency may be annulled at pleasure; but if anything is definitely granted, everything embraced in the descriptive words of the grant is gone. The regulation of commerce is the thing granted, not in part by the descriptive words, but in whole; then the whole regulation is surrendered.
In the ease of grants of power touching ‘naturalization’ and bankruptcies, asad the grant of power touching the organizing of the militia, ■grants made in the same section, and sometimes relied on as tending to justify the anomalous assumption of a concurrent power in congress and the States to regulate commerce, it will be seen that in neither of the eases is the grant made in the general, unqualified terms employed with reference to the commerce regulating power. In neither case is the whole power given in terms, but in each instance there either are ¡limitations on the grant itself, or reservations taking back a part of the power.
It seems to me not only plain that the power to “regulate commerce” was intended to be given to the exclusion of any interference by the States, but that this purpose has been indicated by all the other provisions on the same subject.
Commerce is regulated often, by the levying of taxes, duties and imposts. This the convention understood very well, and not being willing that the commerce power which they had given to congress should be abused by unequal legislation, it was provided that congress, in laying these burthens, should make them uniform.
The members of the convention had seen enough of conflicting and unequal duties, under the confederacy, not to be suspicious lest dishonest combinations might be formed, and unequal duties assessed, on different sections of the country, they laid the injunction, therefore, on that party which was clothed with the power to act.
If the States retained this power of levying taxes, duties and imposts, it must be seen at once there never could be uniformity, and the restriction on the power of congress is vain and nugatory.
Again, congress is restricted in its commerce-regulating .power ¡¡a this — “no tax or duty shall be laid on articles exported from any State.”
Again, no preference shall be given by any regulation of commerce or revenue, to the ports of one State over those of another, nor vessels bound to or from one State, be bound to enter, clear or pay duties in another. These restrictions on the power of congress, tying up its bands, in the use of the power to regulate commerce, which had been given to it, guarding assiduously and carefully against abuses, which it was feared might creep into its administration of the commerce regu-ting power, which had just been transferred from thirteen quarreling and almost belligerent States to congress as a common depository of a power which they admitted themselves incompetent to wield; and yet we are told that congress was never vested with more than a concurrent power over the subject; that the States retained aright to legislate on every matter which congress omitted to legislate upon, and are at perfect liberty in the first instance, to do all these tilings, which the convention so solemnly declared that congress should never do.
Let it be conceded for a moment that the power is concurrent: a State, then, is at liberty to cause vessels belonging to a sister State to enter, clear and pay duties therefor in her ports. Now let us suppose that congress neglects or refuses to interfere — the law is valid — the courts must enforce it, and the wishes of the convention so clearly expressed, that congress should never require such a thing to be done, are utterly defeated.
This is only one of the many singular consequences growing out of a concurrent power.
There are other views enforcing still more clearly the doctrine that tiie power is exclusively in congress. The 2d member of the 10th section of the 1st article U. S. constitution, provides in substance—
1st. That congress may consent to a State’s laying imposts or duties on imports or exports.
2d. That congress may consent to a State’s laying a tonnage duty, unless it can be shown that the levying of tonnage duties and impost duties on imports and exports are regulations of commerce.
I am entirely at a loss to conceive why, with a concurrent power in the State to regulate commerce, it was necessary or proper to introduce these stipulationspnto the constitution. A State was not bound to wait for the consent of congress, but might act as it pleased, and if congress
There are practical difficulties in the doctrine of a concurrent jurisdiction, as contended for, which I have been unable, after most anxious reflection, entirely to reconcile either with the philosophy of legislation or the public convenience.
It is said that the States have the right to legislate where congress has not legislated. Now, suppose that congress should feel it to be their duty, after examining thoroughly the condition of trade between the States or foreign nations, or after looking at the traffic in a particular article, say salt, to do nothing, but leave it to pursue its course; or after passing a law to regulate the trade between Missouri and New Mexico, resolve to pass no law in reference to the trade between Ohio and Kentucky. Is there not often as much effected by not acting, as by acting? I have, myself no doubt of the fact; and I regard a prudent forbearance to interfere, in many cases, quite as conservative as a contrary course. The father who, corrected his child yesterday has not ceased to exercise the parental power because it is omitted to-day,, nor has that power necessarily become dormant, or ceased to exist.
In the manifold relations and highly delicate nature of the commercial interest of this country, it would be no small difficulty for the congress of the United States effectually to watch the progress of legislation by so many different sovereignties, and apply with lequisite wisdom and dispatch the necessary cerrective remedies.
Troublesome and annoying as such a tax would be, it is yet more incomprehensible how the States can be supposed so to administer the commerce regulating power as to cause all duties to be uniform throughout the United States, or to lay down a navigation and tonnage system in which no preference should be given in the ports of one State over those of another, nor do I yet see how they are to agree lipón any common commercial system of regulations for the Indian tribes.
But this very question has been several times before the supreme court of the United States, and has been thoroughly examined. In the case of Gibbons vs. Ogden, 9 Wheaton’s report, 196—the matter in issue was whether the power to regulate commerce with foreign nations and among the several States, was exclusively in congress. That court decided that “the power vested in congress was complete within itself — might be exercised to its utmost extent, and acknowledged no limitations, other than those prescribed in the constitution itself. That it was vested in congress as absolutly as it would be in a single government,” page 197. “When a State proceeds to regulate commerce
In Holmes vs. Jennison, 14 Peters, 570, the opinion was delivered by chief justice Taney, and established, “that all the powers which relate to foreign intercourse, are confided to the general government.” And, if there is no error in the judicial tribunals, the “intercourse” is “commerce;” and if there is no distinction as to the degree and kind of power granted to congress to regulate commerce between the States and that which is granted to regulate it with foreign nations, all the powers which relate to commerce between the States, are also vested in congress.
In Groves vs. Slaughter, 15 Peters, 504, Justice McLean delivered the opinion of the court, again affirming the doctrine of exclusive power in Congress, as laid down in Gibbon vs. Ogden, above cited; and that no part of the power to regulate commerce could be exercised by a State.
Mr. Justice Baldwin, in the same case, said: “The power of congress to regulate commerce among the several States, is exclusive of any interference by the States, and has been, in my opinion, conclusively settled by the solemn opinions of this court; nor can there be any adjudications of this court considered authoritative if these are not.”
In Brown vs. Maryland, 12 Wheat. 448, it was adjudged by the court that the power to regulate commerce was exclusively vested in congress; and extended to the whole subject — meaning, the whole subject of commerce, properly speaking. Justice Thompson dissented from the balance of the court.
In this case, as well as that of Gibbons vs. Ogden, 9 Wheat., the opinions of the court were delivered by chief justice Marshall, who discussed the whole subject with an amptitude and force of reasoning, and a copiousness and variety of illustration never since surpassed in any adjudications of that court, when the same subject has been under consideration.
It has been contended here, that the opinions of the same court in the License cases, 5 Howard, and in the Passenger Cases, 7 Howard, have established another doctrine inconsistent with that of Gibbons and Ogden, and Brown and Maryland, but I am not certain that this position is tenable.
In the License cases, the question was not before the court, but I admit it was discussed by the judges. The cases were decided, and the statute of the States pronounced constitutional, on the ground of the police power in a State to restrain the sale of ardent spirits, for the sake of peace and good order. ' No such question, as whether a State may-use its taxing power or any part of its police power, to discriminate against the productions of sister States, or foreign nations, or Indian tribes, was to be decided; and construing the several opinions of the members of the court, with the matter before them, I not only find no fault with them, but am satified, that even in the opinion of some of those members of that court, who insisted on the concurrent power to regulate commerce, the law now under discussion before this court would be deemed unconstitutional. And I may here remark generally, of nearly all such members of that court, that it will appear from their opinions, not only in the License Cases, but in the Passenger Cases also, that while they make scarcely a distinction between the commerce regulating power and the police power, they neverthless concede that the power óf a State to regulate commerce, which they contend for, is not co-extensive with the subject, but confined and limited within a narrow bound.
Thus in 5 Howard. 516, Chief Justice Taney, laying down what he considers the limits of the State power of taxation, uses this strong language :
“ Undoubtedly, a State may tax its own citizens, in proportion to the amount they respectively are worth, and the importing merchant is liable to the assessment, like any other citizen, and is chargeable accordyig to the amount of his property, whether consisting in money, engaged in trade or imported goods which he proposes to sell, or any other property of which he is owner, nor can this affect the price of the commodity to the consumer, since foreigners, as well as citizens of other States, who are not chargeable with the tax, may import and sell,” &c.
In page 579 he says “the controlling and supreme power over commerce with foreign nations and the several States, is undoubtedly conferred on congress, but-in my judgpent the States may nevertheless,
It will be remembered it is on this ground of health and morals, &c., that the learned judge rests the decisions of the License Cases.
The above remarks of the Chief Justice are nearly co-incident with those of Mr. Justice McLean, who denied the concurrent power, when he says, 5 Howard, 592:
‘‘Under pretence of police regulation, a State cannot counteract the commercial policy of congress. The State cannot, with a view to encourage local manufactures, prohibit the use of foreign articles, or impose such a regulation, as shall in fact be a prohibition. But it may tax such property as it taxes other and similar property in the State, either specifically or in form of a license.”
Mr. Justice Daniel thought that the foreign article ought to be subject to State taxation, in common with all other property of the same citizens. 5 Howard, 612.
In the License Cases, so far as the taxing power of a State was brought into view, one question was, can the State tax it at all? The point decided was, that it could tax it, as other property in the State was taxed.
Here the question is, can the State tax the foreign article differently and by a discriminating tax which amounts to a regulation of commerce unconnected with any question of the State police. The difference is important. In the Passenger Cases the question of the exclusiveness of power in congress to regulate commerce with foreign nations, and between the States was directly up for decision ; as was, also, the nature and extent of the State taxing power in connexion therewith. Justice Woodbury contended again for the concurrent power in the States and general government, as he had done in the License Cases, but it will be seen that on a careful examination of his opinion, that he does not claim a power to regulate commerce in the State co-extensive with the subject.
It will appear that he claims a power in tire State to regulate only some things in connexion with commerce, and though he does not distinguish between the commerce regulating power of the general government, and the police power of the State in principle, he is prepared to do so in practice, as the cases arise.
In 7 How. 529, Passenger Cases, he says, (speaking of the State taxing power,) “sueh is the case of Turner vs. Smith, considered in co.n-.nection with this, collecting the same of its own citizens as of others’;
Again, on the same page, he intimates an opinion, that the clause of the constitution, which provides that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” ought “to protect the citizens of sister States from any legislation by a State which does not press, at least, as hard on its own citizens as those of sister States.”
But, on page 557, he employs the following language, remarkable, if in fact,, there be a real substantial difference of opinion between him and the majority of the court, as to the exclusive power of congress to “regulate commerce” in its proper sense. “There is nothing in the nature of much which is here connected with foreign commerce, that is in its •character foreign, or appropriate for the action of a central and single government; on the contrary, much that is entirely local; something, universal or required to be general or uniform. For, though congress is empowered to regulate commerce, and ought to legislate for foreign commerce as for all its leading incidents and uniform and universal wants ; yet to “regulate commerce,” could never have been supposed, by the framers of the constitution, to devolve on the general government anything except exterior intercourse with foreign nations, with other States, and the Indian tribes. Everything else within State limits was, of course, to be left to each State.” In this way much was meant to be left to the States, and much ever has been left, which partially related to commerce, when I say much was left, I mean concerning details and local matters inseperable, in some respects, from “foreign commerce,” but not belonging to its exterior or general character, and not conflicting with anything Congress has already done.
So far as reasons exist, to make the exercise of the commercial power exclusive, as on matters of exterior, general and uniform cognizance the construction may be proper to render it exclusive, but no further, as the exclusiveness depends, in this case, wholly on the reasons, and not on any express prohibition, and hence cannot extend beyond the reasons themselves; when they disappear, the exclusiveness should halt, “cessante ratione, cessat et ipsa lex.”
It nowhere appears to have been settled that this power is excluaiv*
Chief Justice Taney merely insists on the power of the State to make regulations of commerce, for the safety and convenience of trade, to protect morals, health, etc., all of which is conceded by the court under the police head.
In these Passenger Cases, the question was whether the State of New York had power to impose a tax of one dollar and fifty cents, on the master of the vessel, for each cabin passenger coming into the port of New York, by sea, from any foreign country ; and twenty-five cents for each passenger coming from sister States in coasting vessels ; and whether the State of Massachusetts had power to impose a tax of two dollars on the master of the vessel, for all alien passengers coming by sea into the port of Boston.
It was held by the court as follows: that the tax on passengers from foreign countries, was a regulation of commerce with foreign nations, and the tax on the passengers coming from sister States, was a regulation of commerce between the States — Justices McKinley, Grier, McLean and Wayne gave separate opinions, that there was an exclusive power in congress to regulate commerce, and that ipso facto, by virtue of the grant to congress of this power, these statutes are void. Mr. Justice Grier, however, after deciding that to tax intercourse with foreign nations, or between the States, challenges the power to exclude this intercourse altogether, and thus thwart the policy of other States and the Union, was a violation of the constitution, also insisted that < Ongress had regulated commerce between the States and with foreign nations by willing that it should be free. In this opinion Mr. Justice Catron concurred; so that it is impossible to doubt what would be the opinions of the same Judges on the law now before us.
In the case of Brown vs. Maryland, that clause of the constitution which forbids the State to lay any duties or imposts on imports or exports, save what may be absolutely necessary for executing its inspec
The court held that while the goods remained in the hands of the importer, in the forms imported, they were not subject to any tax whatever, on the part of the State — that in that condition they were taxable by congress, but not by the State government, and that although it was competent to the State authority whenever imported articles have passed out of the channels of commerce, by being so altered as to become a portion of the common mass of the property of the State to tax' them by its local laws; yet, that until that fact had transpired by breaking the bales or otherwise divesting them of the distinctive character of the imports, they were subject to the taxing regulation power of congress, and not of the States.
Now, it must be admitted that there is great difficulty in laying down any fixed rule, adapted to all cases, which will sufficiently designate when imported goods have lost their character as such, when they have fully ceased to claim the protection of congress, and may rightfully demand the protection of State laws. The difficulty on this point, is not peculiar to the case before us, but is common to the entire subject matter of legal adjudication, where the condition of persons or property is
But it seems to me, tiie legislature of Missouri has relieved the ease of any difficulty on this head. They have signified their will, that no goods, wares, or merchandise, the production, growth, or manufacture of any place out of the limits of Missouri, shall ever mix with the common property in this State; shall ever be placed on a footing with other property in the State, so long as it remains in the merchant or grocer. They have denounced it as separate in its nature ; as worthy of heavier burthens, and a peculiar restrictive system of taxation, known to no other property in the State, and all this because it is foreign; lias been imported into theTState; either from foreign nations or from sister States. While they so designate it and treat it, what right have they to say it has mixed with the common property of the State ? When “it has so mixed, it has ceased to be foreign,” says Judge Marshall. But our legislature says it is foreign, and they tax it as foreign. Then they ought not to be allowed to tax it as mixed. It is conceded at the bar, that if the twenty cents were laid upon the act of importation, it would be void, or if it were laid on the imported article, and secured by a,lien on the article, it would be a duty on the import and void. Now I am unable to perceive, if this be so, how the holdng up the tax awhile, but laying on and collecting it at the end of a short time without a lien, can make it valid. Forms here are nothing, substance everything.
My opinion, then, is, that the tax imposed on the property of the, appellants in this case, was for the reasons stated, repugnant to the constitution of the United States.
The question which has been raised on the State constitution, grows out of the provision in the Bill of Rights, which declares “ That all ’ property subject to taxation in this State, shall be taxed in proportion to its value.”
It would seem at the first statement to be perfectly manifest that the object of this clause was to render taxation equal — to cause the burdens of government to bear with equal weight, in proportion to taxable property, on every citizen. The inherent justice of such a rule evinces the same view. Nor does the history of taxation, often flagrantly iniquitous and arbitrary, both in England and America, at all tend to relieve the mind of the first impression naturally suggested on reading this provision of the Bill of Rights ; that it was intended to do just what it says — cause all property in the State, subject to taxation, to be taxed ir» proportion to its value.
It is insisted, however, that the cotemporaneous construction is.
If the constitutional provision does not mean that all property taxable by law, shall be taxed equally in proportion to . its value, what does it mean ? We are told at the bar that the purpose was to impose ad va-lorem, instead of specific taxes on whatever classes of property may be taxed ; that the object was not to make each hundred dollars worth of property, required to be taxed, pay the same ■ amount to government but to impose an ad valorem tax of any given rate on all property of one kind, and an ad valorem tax of a different rate upon all property taxable of another kind. To illustrate — slaves maybe all taxed at one-fifth of one per centum on the value, while lands may all be taxed at the rate of one-tenth of one per centum on the value. I am not aware that this idea has the weight of cotemporaneous construction, and I am at a loss to conceive the motive which could have sought to fix upon the people so unfair a principle of taxation.
It cannot be doubted that wherever unjust and oppressive systems of taxation have obtained, they have assumed this very form, which, it is contended, was purposely provided by the convention for the people of Missouri. My recollection does not now serve me with an instance in which a tax has been levied unequally on the same subject of taxation. When in the vicissitudes of political contests, taxes have shifted their burthens, they have fallen on this class or on that class. But to fix a tax of five per cent, on this landholder, and ten per cent, on that, and twenty per cent, on the third landholder, would be a degree of political iniquity which I apprehend has, rarely, if ever, been witnessed. I do not think, therefore, that the object was to require merely that each class of property holders should be taxed alike.
I cannot imagine why the convention should seek to have a system of unequal taxation, graduated upon an ad valorem principle. But it has been very well remarked at the bar, in reply to this, that, even if it be the correct exposition of the constitution, the case will still not be relieved of its difficulties.
The fact that one barrel of flour comes from Illinois, and another barrel from Missouri, will not make them different kinds of property, to be taxed differently, even under the view of the constitution, insisted upon by appellee’s counsel.
But to return again to the words of the constitution: “ All property subject to taxation,” &c. — not each separate class of property — “ shall be taxed in proportion to value.”
In the absence of any other rational expiation of the meaning of the provision, I am of the opinion that the legislature, in proceeding to raise revenue, is bound, where they tax at all, to impose upon, all taxable property an equal rate of taxation. That is, no person who is taxed for the support of Government can be required constitutionally to pay a higher rate pet cent, per annum on any one hundred dollars’ worth of his taxable property than he pays on any other, nor than any other citizen pays on his taxable property.
The constitutions of Illinois, Arkansas, Tennessee and Maryland contain provisions not very dissimilar to our own.
“ The constitution of Illinois is in these words : “The mode of levying tax shall be by valuation — so that every person shall pay a tax in proportion to the value of the property he or she has in his or her possession.” This constitution was adopted in 1818, but two year's before our own, and was doubtless intended to embody the same principle.
I will also give here the clause from the constitution of Arkansas, which is fuller but to the same purport:
“All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected, shall be taxed higher than another species of property of equal value; provided the General Assembly shall have power to tax merchants, hawkers, pedlars and privileges, in such a manner as may from time to time be prescribed by law.”
These constitutional provisions have each been reviewed by the Supreme Courts of their respective States, and expounded in a manner entirely concordant with the view here taken of the clause in our own State constitution. See 1 Gill Rep. 308; 5 Ark. 207; 3 Scam. 138, and 5 Yerger R. 456.
I do not concur with my brother Birch, if it be his opinion that the
But another point has been presented which it is contended, renders all the principles which have been discussed and settled above, inapplicable to this case. It is this : That the several acts of the legislature are not intended to impose any tax whatever on property, but are merely directed against the occupation or privilege of the merchant or grocer; and conceding that for the reasons already shown, it would not be constitutional to discriminate against or exclude from the State, the articles of property employed in the business of the merchant or grocer, or that it would not be constitutional to tax them unequally, as a portion of the common mass of domestic property of the State, yet there is no infringement of either constitutional guaranty, when it is observed, that no property is really taxed in the case, but merely an “employment,” or “occupation.”
I must admit, that this objection has been very forcibly presented to my mind — and that I have had different opinions in regard to it; it was. the only difficulty in my way on the first argument; and I was particular in directing the attention of counsel to the subject.
During the present term of the court, my mind has been anxiously endeavoring to realize the propriety and reality of a distinction, which appears to have very generally obtained; so difficult is it to divest the niind of a false impression, once fixed upon it. I have, however, after much thought and inquiry into this subject, come to the opinion, that this distinction is one of form only, and should not interfere with what would otherwise be the judgment of the court.
A tax of $500 worth of property belonging to one citizen, of one dollar, and a tax on the privilege of holding, using and enjoying $500 of property by another citizen, of the same amount, exhibits a difference, if there be one, so impalpable and evanescent, as not to be clearly identified by language. Long habits of conceding the existence of a difference, may induce us to suspect there must be something in it— but we shall have more difficulty when we attempt to define by any fair
To say it is not a tax on property, but a tax . on an occupation, because the party taxed has property, is to argue in a circle, and to confuse ourselves without convincing the understanding.
Let us endeavor to test the principle of the distinction by its practical operation. Let us suppose the property of the defendant, Crow, is not subject to a direct tax, the constitutions forbid it — but then his occupation in having that property may be taxed — how is this tax to be collected? He does not choose to pay, and the revenue officer goes into his house to distrain for the tax — he cannot seize any of his property, it is all protected by the constitutions from his power.
To say that the goods are not liable to be taxed as here claimed, and yet may be seized and sold to pay it, is still following the circle, in which the premises and the conclusion are both assumed, and alternately made to prove each other.
If such a process of reasoning shall be tolerated, then the constitutional enactment is made a dead letter, by the change of a few words in a revenue law. You have only to provide that every person who is the holder of any real estate, or uses or occupies the same, is declared to be a farmer, and require him to take out a license, and apply the same rule to slaves and other property, and the whole system of property taxation vanishes from the statute book. The better doctrine would seem to be, that where the property itself is liable to taxation, the license mode of reaching it may be employed; but where the property itself is forbidden to be touched, the prohibition cannot be evaded by substituting for the word ‘‘property,” the phrase “license to use, enjoy or sell property.”
I am unable to see on what principle one of these should be constitutional and the other unconstitutional. I see nothing against the employment by our legislature of the license form of taxation, if they choose to do so, but I deny their power to lay a higher or different tax by license than in the direct way. They have the power to tax vocations, I have no doubt — but such a tax should be what it pretends to be: a vocation tax.
In the license cases, 5 How. 575, Chief Justice Taney, speaking of goods, wares, and merchandise in the hands of the importer, says, “a tax upon them while in this condition, for State purposes, whether by direct assessment, or indirectly by requiring a license to sell, would be hardly more justifiable in principle than a transit duty on merchandise passing through a State.”
Justice McLean quotes, with approbation, the ruling of the court in Brawn’s case, that a “tax on the sale of an article imported only for sale, is a tax on the article itself.”
In the Passenger Cases, 7 How. 467, Justice Catron held, “that imposing a tax on the master of a vessel, of two dollars for each passenger coming in the vessel, was a tax on the passengers through the master, and was as unconstitutional as if laid directly on the passenger as an import.”
Mr. Justice Grier (ib. 458) held, that it was “a tax on the master, as the representative of the vessel and cargo, and was not valid, because the vessel and cargo were exempt from such a tax.” Chief Justice Taney, in the Passenger Cases, (p. 481) says, “unquestionably a
Mr. Justice Woodbury (ib. 531) says, “it is customary in most countries, as before named, to impose taxes on particular professions and trades, or businesses, as well as on property, and whether in the shape of a license, or fee, or an excise or poll tax, or any other form, it is of little consequence, when the object of the tax is legitimate.’’ But I infer that, when the object of the tax is not legitimate in any given case, as to the property, it would not be legitimate, in his opinion, in a different form.
It has been insisted that this tax does not profess to be assessed on property. The law says, “when the amount received shall amount ib value to more than five hundred dollars, or less, the tax shall be one dollar.” But I do not know that it is very important what the law may profess to do, or not to do, as the validity depends upon the actual fact;, rather than the form in which a tax may be covered up or disguised.
That the tax is not graduated by the amout of property on hand, but by the amount which was received six months before, is no answer to the allegation that the tax falls on the property, because when the next license is taken, all the property on hand is covered by it. If no other license is taken out, there is, in that case, a mere evasion of the law, which can prove nothing either way as to the nature of the tax.
The same thing may happen in regard to the land tax. A man buying real estate after one assessmet, and selling it before another, escapes .the payment of any tax; but no one will pretend that this fact can have any influence in determining whether the land tax is a property tax or not.
The case of Nathans vs. Louisiana, (8 Howard, 73,) is again appealed to on this branch of the subject. There is no prohibition in the constitution of Louisiana, I believe, on the power of her legislature td license occupations. Nathans, was but a license on his occupation or avocation. It was not graduated by the amount of bills of exchange he had sold in the last six months, or had on hand to sell. It was a license established and fixed by law, whether the broker sold one bill or ten thousand bills of exchange.
Unconstitutional laws are more or less unjust and unequal, and are always unwise. Look at the effect of these statutes now under consideration. The merchants are now compelled, instead of paying only their just proportion of taxes, according to their wealth, like our other citizens, to pay nearly one-half of the entire revenue of the State. These laws operate by extracting a forced loan from the merchants, to
The consumers pay it — but who are the consumers? The people generally — the great agricultural portion of our citizens. All those who use salt, iron, sugar, coffee, tea, domestics, and various other articles now of daily consumption.
It is no answer to say, “this consumption is voluntary.” It is a voluntary consumption of the necessaries of life.
I have ever considered it the duty of the judiciary to have a proper respect for the legislative department; and feel that the mind of the judge should, with reluctance, come to the conclusion that an enactment of that body is unconstitutional and void. But I believe whenever such a law is brought under judicial notice, it is better and wiser at once to declare it so.
I consider it the plainest dictate of wisdom, to have our legislation properly within the pale of the constitution.
Let each government, State and general, scrupulously keep within its constitutional limits, in their various acts of legislation, encroaching not the least upon the rights and privileges of each other, and our national Union will bid defiance to “foreign levy, malice domestic,” frenzied fanaticism, and the host of hydra-headed combinations springing •up against the rights of man.
I, therefore, come to the conclusion that the statutes of this State, imposing the present discriminating tax upon the merchants and grocers, are not only unjust and unequal in operation, but are unconstitutional, both in regard to our own State constitution as well as that of the United States — consequently I am for reversing the judgment of the criminal court, and for discharging the defendants below.
The questions presented by this case involve the taxing power of this State, and its restrictions both under the State constitution and the constitution of the United States. As the power to tax all the property and business within a State is an essential attribute of its sovereignty, and the only restraint upon its exercise, in the absence of express constitutional provisions, is to be found in the responsibility of the legislature to their constituents, the importance of ascertaining the limitations to this power, whether by the State or the federal constitution, will be readily perceived. The law now in question is entitled: “An act to license and tax merchants.” It has, in all its essential features, been
It is now urged that this law conflicts with the provisions both of our State and federal constitutions, and to this conclusion a majority of this court has arrived. In dissenting from a conclusion involving such important consequences upon our State revenue, it is proper that I should state the grounds upon which such dissent is based.
The material provisions of the law now in force, regulating the license and tax upon merchants, are to be gathered from the act upon this subject in the revised code of 1845, and two amendatory acts passed in 1847 and 1849. From these several statutes, the law may be stated substantially as follows :
A merchant is declared to be a person who deals in the selling of goods, wares or merchandise, at any stand, store or place occupied for that purpose.
All merchants, whether retailers, or wholesale dealers, are required to furnish the collectors of revenue a statement of all goods received by them within six months previous to taking out license, excepting such as are the growth, manufacture or produce of this State.
There is levied upon every such license, a tax of one dollar for the first five hundred dollars worth of merchandise embraced in the statement, and twenty cents upon every additional hundred dollars worth of merchandise.
An ad valorem tax is also levied upon merchandise, the same as upon real estate, excepting such as is in the original bale, package, box, crate, &c., whicli it is imported.
This law is said to be void, both because it conflicts with the constitution of the United States and violates, our State constitution. I will first consider the last proposition.
Tiie provision of our constitution, which is supposed to be violated, U the 19th section of the article containing a declaration of rights, and its language is: “That all property, subjected to taxation in this State, shall be taxed in proportion to its value.”
To all objections based upon this provision, may answer is: first, that the license law in question is not a tax upon property, and therefore, not within the restriction; and secondly, if it were conceded to be such a tax, there is nothing in the law conflicting with the true intent and meaning of this constitutional provision.
This law does not profess to tax property upon its face, or in its tCrms but professes to tax the occupation of those who deal in the sel
A slight examination into the details and practical operations of this law, will show that the legislature had no design of taxing property as such, and if they had, that they have failed in attaining their purpose; although so far as property is reached, the constitutional rule in relation to such taxes is strictly complied with. To procure a license, the merchant is required to state the amount of merchandize received by him during the six months preceding his application, and upon this statement the tax is based. If the merchant begins with a capital of ten thousand dollars, upon which he obtains his license, and in the course of six months buys and sells an additional amount of one hundred thousand dollars worth of goods, and then declined business, and asks no renewal of his license, no license tax whatever is derived from the one hundred thousand dollars’ worth of goods. His occupation ceasing, the tax ceases. But the ad valorem direct tax does not cease in such a case, nor can it be evaded by such a contingency. So, if his
It will be observed that I am now considering this question solely stvith reference to our State constitution, and that provision which restricts a property tax. I am aware that in the case of Brown vs. Maryland (12 Wheat.,) Judge Marshall has declared that^where the State is prohibited from laying direct taxes, the prohibition cannot be evaded by indirectly taxing the. same commodities under guise of a license. The principle may be conceded, but the concession will not reach a ease where the power of direct taxation exists beyond dispute. That was a case where a State, in the opinion of the court, attempted to levy, indirectly, a tax upon imports — a direct tax upon which was expressly prohibited by the federal constitution. The present is a case of indirect taxation upon occupations and business, and the rule prescribed in the constitution for direct taxation upon property is sought to be applied to it. It is fortunate that in the present case the rule has not been violated, as I shall presently show — but it is quite obvious, that In relation to many other kinds of indirect taxation, it would be difficult, if not totally impracticable, to observe it, and to concede its application would be to abolish all power in the State to tax occupations. That power undoubtedly exists in every sovereignty, unless it has been taken away by some express stipulation in its constitutional organization. There is none such in our State constitution.
This law, then is a tax upon an occupation or business. It is a revenue law, and is solely designed for revenue purposes, and is an indirect tax upon the citizens of this State, who are the consumers of the merchandise. This law and similar laws licensing grocers, ferrymen, tavern keepers, billiard table keepers, lawyers, physicians, &c., are the only modes of indirect taxation left to the States. With the expediency of such laws I have no concern. There is a class of political economists, I believe, who regard all indirect taxation as an evil-, and who insist upon a general ad valorem levy upon all the property of alt the citizens of the State. Such direct taxation it is thought, as it would be sensibly felt, would be a beneficial check upon extravagance, and it is therefore preferred on the same principle that would induce a man to make his food unpalatable in order to prevent his becoming a glutton. But this is a question for the legislature, and not the judiciary, and to that body it may be safely left to determine, whether they will continue to raise revenue through the medium of licenses, or will choose
I have already endeavored to show that the license tax in question is not a property tax, but a tax upon an occupation or business, and therefore not within the provision of our State constitution, prescribing a rule for property taxation, and if this opinion be correct, the whole question is ended, so lar as our constitution is concerned. But I will now assume that it is a property tax and that it is within the restriction imposed on the legislature by the constitution.
There seems to be two distinct views entertained and urged in this discussion in relation to the proper construction of this injunction upon our legislature, in relation to their exercise of the taxing power. One opinion, I understand to be, that the legislature are compelled by the constitution to levy a general ad valorem tax upon all property within its limits, not expressly exempted from taxation by our compact with the federal government. This opinion construes the language of the constitution as imposing upon the legislature a constitutional obligation to tax all the property within the State, according to its value, and not an injunction to confine their taxation to an ad valorem tax, whenever they see proper to tax property at all. If this construction be correct, we have never yet had a revenue law in this State which was constitutional or binding. From the year 1820, up to the present time, no such law is to be found in our statute-book. This circumstance certainly does not prove the construction wrong, but it is calculated to favor it, if any other rational one can be found. I shall not dwell upon this proposition, believing that we can readily give this clause of our constitution a meaning, not inconsistent with its terms, and better adapted to effect the object in view by its framers.
Another position, and one which has been strongly urged in this case, is, that although this constitutional provision does not compel the legislature to tax all the property of the State, yet it does not prohibit all discrimination in reference to anything except value. Hence, if the legislature tax horses, or slaves, or cattle, they must lay the tax upon all such property without reference to age, or place of production, or any other circumstance except value.
It is upon the one or the other of these positions, that the provision of the act now in question, which exempts from taxation property which is the growth, produce, or manufacture of this State, is said to be a violation of our State constitution.
I understand this provision of our constitution to be simply designed
I speak now of the taxing power in this State, as an independent sovereignty, without reference to her relations to the federal government. That relation presents another topic, distinct from the one n.ow under consideration, and will be noticed when that branch of the subject is reached. I hold that, independent of her duties to the federal government, the State of Missouri is a sovereignty, and as such, possesses unlimited powers of taxation over all the property and business within her limits, except where the State constitution has made limitations. And, I ask, where is the limitation sought to be imposed? If I am correct in the interpretation I have given to the restriction already noted, there is none whatever to be found. Cannot the legislature give direct, premiums to any branch of industry they may desire to patronize and encourage? There is nothing in the constitution to forbid it, and if they can vote a sutn of money out of the treasury to pay an inventor for his invention, or a fanner for a skilfully conducted farm, or a mechanic for an improvement in his art, what is to hinder them from indirectly encouraging the same persons, by adapting their revenue laws to such purposes? It is in vain to denounce such legislation as class legislation, or to stigmatize it by any other harsh epithets. It is with the power of the legislature only, not the expediency of the laws they pass, that I am concerned as a judicial officer. If the legislature pass unwise and unequal laws, their constituents will hold them responsible. • It
Admitting, then, that the tax upon licenses to merchants must be regulated by the same rule which, under the constitution, governs a property tax, that rule, as I understand it, is not infringed by the present law. It is unnecessary to refer to the details of the act to show this. If it be said that the law, in effect, taxes the same property twice, this is either an objection to the amount of taxation, in relation to which the legislature had discretionary power, or it results in a total prohibition of all indirect taxation, through the medium of licenses. Itbeing contended that a tax upon a merchant’s license is equivalent to a tax upon merchandise, it necessarily follows that no such license tax can be valid, whenever there is a direct tax upon the property employed in the exercise of the vocation or profession or business attempted to be taxed. The same course of reasoning will annul all the taxes now levied upon licenses to the learned professions, or to any other class of persons who are pursuing a.n occupation which the legislature have thought proper to tax. An examination of the general revenue law of the State will also show that it reaches several other branches of State revenue. In short, the argument travels back to the starting point of those who maintain the constitutional injunction of a general ad valorem tax upon all property subject to taxation within the State. It may be also objected, that all the merchandise is not reached by this act, and precise equality or a due proportion between value and property, has not been exactly attained, but it is as near an approximation as is usually attained in such laws. If it be expected that any revenue law which the wisdom of man can frame, is to be based upon the most exact rules of equality, so that it shall operate upon all classes and all individuals alike, and lay the same burthen upon all, in proportion to their means, I confess myself to be one of those who believe such expectations delusive. There is no branch of legislation so difficult, so delicate, so hard to be adapted to the conflicting interests and conflicting views of the constituent, as the framing of a revenue law. It is an easy task to find fault, and point out defects in any one that may be framed, but not quite so easy to suggest a better one. However this may be, I am happily relieved from the responsibility of either making such a law, or revising one made by others. That task has been entrusted by the constitution to other hands, and if it has been badly performed, the corrective must come from a different quarter than this.
To conclude this branch of the subject, I hold that the taxing power of this State extends to all the property, and every occupation or pur»
Assuming these principles as the true criterion of legislative power, I find nothing in the law entitled “An act to license and tax merchants/5' infringing any provision in our State constitution.
The second branch of this case, which relates to the constitution of the United States, presents a wide field of enquiry, and one which, I regret the approaching termination of our term and the press of other causes awaiting adjudication, will not allow me so thoroughly to investigate as its importance demands. I shall confine my examination to> the leading principles involved, and the leading cases upon them decided by the federal judiciary.
Under our complex system of government, no task has been found move difficult or delicate, than that of defining the exact line of distinction between the powers of the State and federal governments. In some cases, the distinction is broad and obvious, but as we approach nearer to the line, it becomes more difficult clearly to define it, and fix the point where the power of the State ends, and that of the federal government begins. The general rule on this subject has been aptly and forcibly expressed by Judge Story, in Houston vs. Moore, (5 Whea. 48), and as that distinguished jurist has not been supposed to have any disposition to enlarge the powers of the States at the expense of any just right of the federal government, I prefer to adopt his views, expressed in his own language, as the basis of further investigation.
“The constitution containing a grant of powers in many instances similar to those already existing in the State governments, and some of them being of vital importance to State sovereignty and State legislation, it is not to be admitted that a mere grant of such powers in affirmative terms to congress does per se transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the States, unless where the constitution has expressly in terms given an exclusive power to congress, or the exercise of a like power is prohibited to the States, or there is a direct repugnancy or incompatibility in
There are two provisions in the constitution of the United States which are thought to conflict with the act of our legislature to license and tax merchants. One is the clause which gives to congress power to regulate commerce with foreign nations, between the several States and with the Indian tribes. The other is that section whifijh prohibits the States from laying any duties on imports or expoj^@pexim#tjSm^as may be necessary to execute their inspection laws. u
To maintain a conflict between the law now ih!,quesJ;imiMndv|h4p. Pro“ vision of the constitution which gives to eongr^JTO$^powervo'ref|ulate commerce with foreign nations and between tire SUaies,rft.U,inBcapsary to determine that this law is a regulation of comVrce, either wüín foreign nations or among the States, and is repugnanCtü^pírtñwof congress touching the same subject, or that it is such regulation of commerce, and that the power over commerce is exclusively vested in the federal government. I deny both propositions.
Whatever diversity of opinion may be found among the Judges composing the present bench of the supreme federal court, in relation to the character of the power vested by the constitution in congress over foreign commerce and commerce between the States, an examination of the Late, cases usually called the License cases, (5 Howard,) will show that the deliberate judgment of that court is, that the power is not exclusive in congress,but concurrent with the States. Five of the judges distinctly announce their opinions, and base their judgment on that point. Judges McLean and Wayne being the only two who distinctly avow a different opinion, Judge McKinley apparently coinciding with them, and Judge Grier not having in these cases, or any other, that I am aware of, intimated any opinion upon the question. It is true that Judge Catron, in the subsequent cases, termed the Passenger Cases (7 Howard,) is found acting with the»majority, which included the judges who, in the license cases, held the doctrine of exclusive power, but his concurrence in the judgment is based solely on the ground that the laws of New York
If, therefore, it be conceded, that the law of Missouri now in question was a regulation of commerce, among foreign nations or between the several States, it would not for that reason be deemed unconstitutional, unless its provisions conflict with some act of congress, passed on the same subject. It is not pretended that congress have passed any such law.
But this law is not, in my judgment, a regulation of commerce, either with foreign nations or among the States. That it was passed with no such object, — that the legislature which enacted it, entertained no such purpose, even remotely, I presume will hardly be questioned by any one. Can even a suspicion be entertained, that the legislature of Missouri, when they passed the act to license and tax merchants, had the most distant thought of crippling-the commerce of this State with her sister States, or of affecting it to any perceptible degree ? Unfortunately it may be for our State, we have no domestic manufactures to protect, and our agricultural productions need no protection. If the clause which exempts from the tax the domestic productions of the State, were stricken out from the act, the revenue of the State would scarcely be diminished to an appreciable extent, and as it now stands, does not affect perhaps a single merchant out of this city to the amount of a dollar. But, I readily concede, that law may be framed with honest intent, and for a legitimate purpose, and yet its effects may be illegitimate and unconstitutional, and if such a character can be fastened upon the present law, it must be declared void. To ascertain the object and bearing of a law, however, when its validity depends on the relative powers of the State and Federal Government, we are not to look at remote consequences, and because it may have an indirect operation upon commerce, therefore conclude that it is a regulation of commerce within the meaning of the federal constitution. Such a course of argument would annul a very large class of laws, found in the statute-book of our State, and every other State of the Union, and would effectually undertime the sovereignty of the State. The taxing power, especially, without which the State government would be but phantoms of sovereignty, would be essentially impaired, and to an extent never contemplated by the framers of the federal constitution.
It must be borne in mind, that the taxing power of congress and the power to regulate commerce are distinct and independent powers, not derived from the same source nor leading to the same results. The
It does not follow, therefore, that because the act now under consideration incidentally or remotely affects commerce with other States, it is, therefore, a regulation of commerce, within the meaning of the federal constitution. Judge Woodbury observed in the Passenger Cases (7 How:) “The fair exercise of powers rightfully belonging to a State, as the power of taxation, though connected often with foreign commerce, and indirectly or slightly affecting it, cannot, therefore, be considered, in any point of view, hostile, by their intent and origin, as regulations of such commerce.” In the same case, the Chief Justice declares that the taxing power of the State remains just where it before existed, except where it is expressly prohibited. “They are expressly prohibited,” he adds, “ from laying any duty on imports or exports, except what may be absolutely necessary for executing their inspection laws, and also from levying any tonnage duty. So far, their taxing power over commerce is restrained, but no further. They retain all the rest; and if the money demanded is a tax upon commerce, or the instrument or vehicle of commerce, it furnishes no objection to it, unless it is a duty on imports or a tonnage duty, for these alone are forbidden.” The same Judge reiterates the doctrine more emphatically in the following terms : “ The taxing power of the State is restrained only where the tax is directly or indirectly a duty on imports or tonnage. And the case before us is the first case in which the power has been held to be still further abridged by mere affirmative grants of power to the General Government. In my judgment, this restriction on the power of the States is a new doctrine, in opposition to the contemporaneous construction and the authority of adjuged cases. And if it is hereafter to be the law of this court, that the power to regulate commerce has abridged the taxing power of the States upon the vehicles or instruments of commerce, I cannot foresee to what it may lead; whether the same prohibition upon the same principle may not be carried out in respect to ship owners and merchandise in a way seriously to impair
It will be observed that these remarks of the Chief Justice, foreshadowing the consequence of the doctrine against which he protested— consequences now no longer imaginary — point out the true position of the majority of the court upon this point, although falling from a Judge who was in a minority in rendering the judgment in the case. Judge Taney assumes that the conclusion to which the majority arrived could not be reached, without an assertion of the doctrine of exclusive power in congi’ess ove»- commerce; but in this, the result proved him to be mistaken, since Judge Catron, who was of the majority that gave the judgment against the validity of the State laws, agreed with him upon this point, and placed his opinion entirely upon the ground that congress had actually exercised the power upon the subject, and that the laws of New York and Massachusetts conflicted with laws and treaties of the United States, and must therefore yield upon any construction of the constitutional grant of power, whether exclusive or concurrent. We must therefore regard this position of the Chief Justice, concurred in, as it was substantially by Judges Woodbury, Daniel, and Nelson, as that of the majority of the court, Judge Catron’s assent to the judgment being based upon different grounds, and that Judge having also previously assumed the same position on this point in the License Cases.
In the Passenger Cases, the validity of certain laws enacted by the States of New York and Massachusetts was the question before the court. By these laws no alien passenger was permitted to land in the ports of these States, until the master or agent of the vessel paid the boarding officer two dollars for each person so landing. These laws were declared unconstitutional by a bare majority of the court, Judge Catron being one of that majority, and adhering still to the same doctrine, in relation to the nature of the general power over commerce vested in congress by the constitution, which he had maintained in the License cases. It is manifest that Judge Catron’s opinion decided the case, and that opinion, as I have heretofore stated, is based on the ground that these acts conflicted with laws previously passed by congress, regulating the introduction of foreigners into this country, and with treaties made with foreign nations, and were against the general scope and spirit of the entire legislation of congress on this subject. If Judge Grier’s general concurrence with Judge Catron, in this case, is to be understood as committing him to the reasoning as well as conclusion of the former, there are then six out of the nine judges composing the then bench, declaring that the power over commerce with foreign
It would be superfluous to point out the distinction between the State law now in question and the laws of New York and Massachusetts, held to be unconstitutional in the Passenger cases. They are essentially dissimilar in all their features, character and object, and that dissimilarity is obvious and apparent.
The License Cases, (5 Howard) maintain the same doctrine with the Passenger Cases. Massachusetts passed an act which virtually prohibited the sale of spirituous liquors in many portions of that State, whether imported from abroad or from other States. Sales were prohibited in any case, except by license, and it was left to the discretion of certain State officers to determine whether a license should be granted or not. Such a law was virtually a total prohibition of sales, wherever public opinion favored it. Similar laws were enacted in Rhode Island and New Hampshire. These laws were held constitutional, and the judgment of the court was based upon the doctrine that the laws were in effect regulations of the internal commerce of these States' and therefore not an infringement upon federal authority.
It is to be remarked in these cases, that the chief justice directly admits the propriety of the decision in Brown vs. Maryland, and yet in the New Hampshire case, where a barrel of American gin was brought round from Boston and sold in the barrel, he held that the State could prohibit its sale. And of this opinion was all the judges. I shall hereafter advert more particularly to this New Hampshire case, as it principally concerns another branch of the question now under consideration, merely stating here, that the opinion of a majority of the courts in this case did not proceed upon an undefined and indefinable notion of a police regulation.
The decision in the License Cases was made in 1847, the court being constituted then as it is now. Can that decision be reconciled with the position' that the law of this State to license and tax merchants is a regulation of commerce and therefore void ? The laws of Massachusetts and Rhode Island, and New Hampshire, virtually prohibited the sale of an imported article of commerce — one which under the laws of the United States was authorized to be imported, and from the duties on.
The case of Nathan vs. Louisiana, (8 Howard) contains, perhaps, a more full exposition of the qualifications under which we are to understand this power to regulate commerce, than either of the cases which I have referred to, and is more analogous in its facts to the present case.
This was a revenue law of the State of Louisiana, enacting that every money or exchange broker should pay an annual tax to the State of two hundred and fifty dollars. An indictment was found under this law, and the defence was, that the business taxed was exclusively that of buying and selling bills of exchange, or instruments of foreign commerce, or commerce between the States, and that the tax was repugnant to the grant of power to congress on this subject. The court held the law to be valid. Judge McLean, who delivered the opinion of the court, said “The right of a State to tax its own citizens for the prosecution of any particular business or profession, within the State has not been doubted. And we find that in every State money or exchange brokers, vendors of merchandise of our own or foreign manufacture, retailers of ardent spirits, tavern keepers, auctioneers, those who practice the learned professions, and every description of property, not exempted by law, are taxed. * * Money is admitted to be an instrument of commerce, and so is a bill of exchange, and upon this ground it is insisted that a tax upon an exchange broker is a tax upon the instruments of commerce. What is there in the products of agriculture, of mechanical ingenuity, of manufactures, which may not become the means of commerce ? And is the vendor of these products exempted from State taxation, because they may he thus used? Is a tax upon a ship as property, which i*
“If this power of taxation,” he proceeds, “by a State within its jurisdiction, may be restricted beyond the limitations stated on the ground that the tax may have some indirect bearing on foreign commerce, the resources of a State may be thereby essentially impaired. But State power does not rest on a basis so undefinable. Whatever exists within its territorial limits, in the form of property, real or personal, with the exceptions stated, is subject to its lawá, and also the numberless enterprises in which its citizens may be engaged. These..are subjects of State regulation and State taxation, and there is no federal power under the constitution, which can impair this exercise of State sovereignty.”
This is the doctrine of the supreme court, given in the forcible and pointed language of a judge, who on the question relating to the extent of the power over commerce vested in the general government, has been uniformly in favor of its exclusive character.
I shall add no more on this branch of the case. It seems to be established, beyond all dispute, by the present supreme judicial tribunal of the general government, to which we look for authoritative expositions of the constitution and laws of the Union, that the grant of power to congress to regulate commerce with foreign nations and among the several States, is a mere affirmative grant of power, not exclusive in its character, not affecting in the slightest degree, the taxing powers of the States — that the federal government has an ample protection to a full and efficient exercise of this power over commerce, in the supremacy of its laws, .made in pursuance of the constitution over any conflicting State enactments, and in the total prohibition to the States of all power
I have not referred to the case of Gibbons vs. Ogden, (9 Wheat.) New York vs. Milne, (11 Peters, 102) and Wilson vs. Blackbird Creek Marsh Company, (2 Peters, 261,) for the reason that these cases merely assert the general principles, a practical application of whieh is more distinctly seen in the later cases. Nor shall I allude to the case of Brown vs. Maryland, (12 Wheat.) in this connection, that ease being chiefly relied on to support the second position taken on this branch of the ease, which I shall now proceed to consider.
The only clause in the constitution, in addition to the one already spoken of, supposed to conflict with the act of our legislature now under consideration, is the one prohibiting the States from taxing imports. As the arguments drawn from this clause rest almost exclusively upon the case of Brown vs. Maryland (12 Wheat.) it will be necessary to examine that case with some attention.
I shall not find it necessary to question the authority of this ease, so far as the points determined by it are concerned, but I may not deem it obligatory on me to sanction all the reasoning of the learned Judge who delivered that opinion. In doing so, I trust I shall not be found wanting in a due respeetfor the ability and learning of so distinguished and upright a jurist as the late Chief Justice Marshall. I shall but tread in the footsteps of his own successt rs, without venturing to discuss the subject as an original question.
What then is this case of Brown vs. Maryland, of which so much has been said in the present investigation ?
In 1821 the State of Maryland passed a law, “that all importers of foreign articles, or commodities, of dry goods, wares or merchandise, by bale or package, or of wine,-ruin, brandy, whisky, #nd other distilled
Now, it must strike one as a little singular, that this decision is invoked in a case, where his honor, the Judge of the criminal court, held precisely the doctrine advanced by the supreme court, and struck out the 2d and 3d counts of the indictment in which the defendants were indicted as importers, for selling in the original bale and package.
How, then, is the decision in Brown vs. Maryland to affect the validity of this law to license and tax merchants ? The feature of our law mostly objected to, is that which exempts from taxation our domestic goods — but if the law was altered in that respect, and the domestic pr< duetions included in thestatement, would it be less obnoxious to the decision in Brown vs. Maryland than it now is ? If the license is now to be regarded as a direct tax, and that tax a tax upon imports, will it be any the less a tax upon imports by also taxing the domestic manufactures and agricultural products of our State? The case of Brown vs- Maryland held that the importer could not be taxed for the privilege of selling his imports, whilst they remained in the shape imported, and in his own hands. If he is also taxed for selling domestic productions as well as foreign articles, how does this help the validity of the taxation upon the foreign articles? In my judgment, there is nothing in the decision of Brown vs. Maryland, confining it to the facts before the court for adjudication, which touches the discriminating feature of our State law. We must go into the reasoning and dicta of the learned Judge, to get a platform upon which to attack the discrimination or exemption.
“An impost,” says Judge Marshall, “or duty on imports, is a custom or tax levied upon articles brought into the country.” An import is a thing imported, and a tax upon imports is therefore a tax upon thing.*
A right to import, according to Judge Marshall, implies a right to sell the thing imported; but he limits this right to sell to the original importer, and d@es not extend it to any subsequent vender. Nor does the right, in his opinion, continue any longer in the original importer than the import remains in its imported shape. If it is broken up, as he expresses it, or mixed up with the property of the State, this right ceases. So that so much ©f our revenue law as reaches imports from abroad, that have left the custom houses at New York, Philadelphia, Boston, or Baltimore, and are here in the hands of merchants who have purchased from the original importers, whether still in the box, bale, or package in which they were imported or not, is clearly unobjectionable, according to the opinion of Brown vs. Maryland. How is it with the domestic manufactures of other States, which have never been in the U. S. custom house, but are brought here for wholesale or retail? Judge Marshall intimated that such importations from other States would be within the principle, but it was not so held by the supreme court in the license cases. In the New Hampshire case, a barrel of American gin was brought from Boston to a port in New Hampshire, and was there sold without license in its original imported form. This sale was against the law of New Hampshire, and the court declared that law to be valid.
I am aware that in the argument of the case now before the court, this decision is said to have been based on the idea that the law of New Hampshire was a health law, or a law to preserve the morals of her citizens, and therefore within the competency of her legislature. And it is true that Judges McLean and Grier, and perhaps one or two others, placed their opinion partly on this ground; and Judge McLean further declared that the laws were not regulations of commerce, but that the license was a charge up.on the business or profession, and not a duty upon the thing sold; but this was not the ground upon which a majority
In the New Hampshire case, as I before remarked, Judges Wood-bury and Daniel expressly repudiated the positions of Judge Marshall in Brown vs. Maryland. They held, with Judges Taney, Catron and Nelson, that the word police included all internal legislation of a State, and was not confined to mere health laws, or laws to promote morality, and that the validity of the laws in question did not depend upon any such distinction. They further held, that the right to import did not include a right to sell, regardless of State regulations, that the subject .of buying and selling within a State belonged exclusively to that State, and was a matter with which the Federal Government could not interfere. They denied that congress, when they allowed importations and derived revenue from duties upon them, also enacted that the importer should sell his articles in such quantities, at such places and at such times as they pleased, but that these matters depended upon State regulations, and that even a prohibition upon the sale was not a tax upon imports, or an interference with foreign commerce, since a man may still import for his own consumption or use. They deny that the laws of New Hampshire and Massachusetts are regulations of foreign commerce or commerce between the States, but declare that these laws simply determined the- mode in which a particular commodity might be circulated within their jurisdictional limits — a matter with which the Federal Government has no concern, and over which she has no control.
The Chief Justice, with Judges Catron and Nelson, admit the doctrine of Brown vs. Maryland, but yet hold that the New Hampshire law was not affected by it. They concede the law to be a regulation of
I deem it useless to enlarge upon this point. The case of Brown vs. Maryland stands by itself — a decision rendered twenty-four years ago —nearly all its principles since doubted or over-ruled, and narrowed down, and frittered away, until its power for good or evil is gone. As a precedent, it will reach no case except just such, an one as itself was. It is possible, that if a State should now enact a law precisely in the language of the Maryland act of 1821, such a law would yet be pronounced unconstitutional by the tribunal to which such questions belong, but I hesitate not to ventui'e the opinion, that the doctrine will never be carried one jot or tittle further.
Having thus disposed of the case of Brown vs. Maryland, the decision in which has been strictly adhered to in the judgment given by the Criminal Court, I am not aware that any other leading case has been cited, having any material hearing upon this branch of the subject. A prominent idea seems to have pervaded the argument of those, who in the discussion of this ease, have maintained the invalidity of this law, because of its discriminating between foreign and domestic productions, which is derived from the danger which they apprehend from an abuse of the power of taxation by the States, whilst no fears seem to be entertained of any encroachments on the part of the Federal Government. They argue that, if the States can tax merchandise brought from other States, or from foreign countries, and yet be at liberty to leave their domestic productions untaxed, this power has no definable limits, and may he exerted to such an extent as to cut off all foreign trade or intercourse with our sister States. It would perhaps be a suf-ficent answer to such extreme cases, that the injury inflicted to the State herself by such legislation, would be an ample guarantee against its ever being attempted, and at all events that it will be time enough to determine such cases when they occur. But no such danger exists. No State can prohibit the introduction of foreign merchandise, if congress has authorized its introduction, but each State may regulate her
It will be seen that in discussing this branch of the case, involving the compatibility of our law with the federal constitution, my object has been simply to ascertain the present state of adjudications in the Supreme Court of the. United States touching the question. In discharging this task, I have found it necessary to allude more particularly to the opinions of individual judges than I could have desired, but this course, if it needs apology, will readily find one in the practice which of late prevails in that tribunal of delivering almost as many opinions as there are judges. To select, therefore, the passing remai’k of any particular judge, and assume it to be the opinion of that court, without first ascertaining how far it has been sanctioned by the majority, is only calculated to mislead. I have endeavored to avoid this, and have therefore spoken of opinions as being those of the court, only where a majority have concurred in them, and where such views of individual judges as seemed pertinent to this case are merely referred to for their intrinsic weight, hut not sanctioned by the whole court, or a majority of the judges, I have so stated them.
I have not offered any extended views of my own on this part of the ease. The question is one of federal cognizance, and it is to the na
I am for affirming the judgment of the Criminal Court.
The deservedly high authority of Mr. Justice Woodbury having been referred to, not only here but elsewhere, as in contravention of the general conclusion at which we have arrived, it is deemed simply necessary to extiact from his separate opinion in the Passenger cases (7th Howard, h31) not on]y the pith and conclosion,bat as we apprehend, the substance of the conelii~ion beyond which no enlighted American jurist or statesman wouid be found to commit himself. We of course make no conmentary-simply denoting by italics the very exception which we have assumed may distinguish the case before us (under oui' peculiar constitution) from almost any which has previously passed the ordeal of the courts. Judge `W. says "The power of taxation, generally, in all independent States, is unlimited as to persons and things, except as they may have been pleased, by contract or ollsrwiae, to re'irict lhemsetvse." `i4o. also, Chancellor Kent states the true doctrine concerning the ~righ~s~ or the potters of the States, when speaking of them as exempt from the control of the United States, titus: "The power of State taxation is to be measured by the extent of State sovereignty, and this leaves to a State the command of all its resources, anti the unimpaired power of taxing the people and property of the State." it is trusted that it need scarcely agent be impressed, that this and kindred conceded authorities can have no inlelltgent applicition in a case like the, present, where the question (with the author of this opinion, at least,) is not between the State law and the constitution of the United States, but simply whether the people of the She themselves have aeon ñt, in their own oiganic law, to ptescrtbe a ;uude or basis of taxati ni, to the spirit of which the system of the law in quostion is not only palpably repugnant. but of which it may be tendered wholly destructive.
The first section of the fourth article of the revenue act of 1845, is in these words:'
“Thescveral county courts are empowered to levy such sum as inay be annually necessary to do fray the expenses of their respective counties, by a tax upon all property and licenses made taxable by law for State purposes ; but the county tax shall in no case exceed the State tax. orr the same subject of taxation, move than one hundred per centum for the same time ; but the county court ofSt. Lout? county is empowered to impose an additional tax, not exceeding nne twentieth of one per centum, if they deem it necessary, in order to pay jurors summoned in the sevt ral c mrts of said county ; which tax,-if imposed, shall be applied to the payment of jurors only.”
It might be as roatlily demonstrated that the mere injustice of tints enforcing the payment of even a concededly constitutional tax upon property designed solely for the consumption of other people, (and upon which they, of course, ultimately pay the whole tax,) by no moans stopssbort nith the extra tax thus authorised to this comity. As, however, the va-ious taxes which arc levied upon the same property by -he authorities of the city, are probably enough derivative from the municipal authority of the legislature herein before alluded to, that subject is, of course, beyond the scope of legitimate inquiry here, and might, therefore, have remained unadverted to, even thus brieflv, except as perhaps sufficiently suggesting the Inapplicability of a portion pf the argu ;ttf at which has been filed at the present term by the counsel for the State.
By reference to the digest of Mr. Geyer, containing a compilation of the revenue laws which were in force, at the time the convention was in session, it is seen that "all property then subject to taxa~ion~~ was not "taxed in proportion to its ~ Not only were many things 01 value, and which were of course under ihe protection of the government and the laws, wholly exempted from any of the burdens of government protection, but the inequality in respect to the things taxed was in many points of view glaringly and even ludicrously un- equal. Thus, while some lands were taxed sixty cents for every hundred arpens, and others twelve and a half cents for every hundred arpens, town lots, together with the houses and im- provesnents upon them, and dwelling houses in the country, were taxed thirty cents for every hundred dollars worth. Slaves above ten years old were taxed sixty-two and a half cents, whilst pleasure cairiages were taxed one dollar and a half for every hundred dollars at which they were valued. Stores, for selling and refajljnr niercliandise, were taxed fifteen dollars lot every six months, and pedlars fourleer dollars-the goods themselves paying no ad vdk- rem. in the constitution-the articles that did payan ad valorem tax having it imposed upon them in different proportions according to the discretion of the legislature or the county courts. It being with such laws as these before them, practically recalling the mole general history of unequal and oppres.. sive taxation already alluded to, that the convention wrote it down and signed it in heir that "all property,~ should Ube taxed according to its be respect- lutly enquired in connection with this merely verbal analysis-why else did the convention ernpJay the verb instead of the participle, todenote their meaning-the term "st~bfect," (or "liable,") instead of the term "subject~d~" (or "made to undergo,")-if they ihtendedto include only such property a~ the 1egisl~ture subjected tq taxation? Can philologist or grammarian sat&sfactoriiy answer even this? agreed upon by them and ratified by the people but to introduce a practical construction of the eonstituticn asserting the legislative power to restore the very system they sought to repress and forever interdict? Could this have been anticipated by those who only forbore to write it out ut once that "all property shall be taxed in propor tion to its value purely because there were several descriptions of land in the State and to he afterwards located which they were prospectively agreeing on the same (lay and an the same breath by their ordinance or compact with the general government they would not tdx. With this reason for the additional words "subject to can even a reasonable doubt be entertained but that they regarded "all " other property as "subject" or liable to taxatin and that in fact it was so? To hesitate or to doubt in reference to such a uropo. Sitioii is to our minds equivalent to the seemino distrust which recognizes the conclusiveness of no reasoning nor indeed of demonstration itself. Why else may it not be respect-lutly enquired in connection with this merely verbal analysis-why else did the convention ernpJay the verb instead of the participle todenote their meaning-the term "st~bfect (or "liable instead of the term "subject~d~" (or "made to undergo,')-if they ihtendedto include only such property a~ the 1egisl~ture subjected tq taxation? Can philologist or grammarian sat&sfactoriiy answer even this?
In the profound dissertation if M. De Tocquevilie, an eminent French author, upon the institutions of this country, he expresses the conclusion with equal force and wisdom, that “if the free institutions of America are to be destroyed, it will be owing to the tyranny of majorities driving minmities to desperation.’’ Of similar opinions are a number of the most eminent and disinterested English writers upon the same subject; and it may not, perhaps, he undefeiential or improper tp add, that the history and result of the political agitation through which the country has been called to pass’during the last few years, must have inclined the minds of most reflecting persons to the conclusion, that however much may be predicated upon the patrioti~m,fiaternalness and mere justice of political communities, there cun be no security equal to that of the constitution, ar.d hence no errors (even) so safe as those which may be committed in deference to its supposed restraints or guaranties.” “The world is governed too mvch.”
It may be incidentally remarked that ¡t is m this point of view alone, and m view of (he rendition of the judgment we propose, that whatever may be thought of Ihe policy of the amended revenue act of the 10th of March, 1849, in respect to money on hand, invested, due, &c., its provisions being equally applicable to all classes of citizens, and restricted simply to the general advalorem upon oiher property, the tax thus imposed seems to possess at least the sanction of sufficient seeming conformity to the constitutional rule, to be sustainable and sustained before a court which abrogates the license tax here in issue, purely because it is an unequal or discriminating one.
