The opinion of the court was delivered by
Thе prosecutors are a foreign corporation’ engaged in mining cоal in the Wyoming valley, in the State-of Pennsylvania, which is transported over the Cеntral railroad to tide-water at Port Johnson, in the county of Hudson,, where it is deрosited on the dock for re-shipment to Hew York, the eastern states and whеrever it may be sold in other states.
The office of the company is in the city of Hew York.. The company has no office at Port Johnson for the salе of coal. The agent in charge there has orders not to sell any cоal or receive money for coal. The business is transacted exclusively through the Hew York office.
Before the coal is sent from the mines, it is contracted for, to be delivered by the prosecutors on board vessels at Pоrt Johnson,-and remains on the dock no longer than is necessary to obtain vеssels to transport it. The quantity of coal delivered in this way, in the course of a year, amounts to about one million five hundred thousand tons.
.The assessment complained of was on a valuation of $50,000, on which a tax of $1,100 was laid.! The assеssor-
The tax,- in fact, was laid upon property in the course of transit across the state. In State, Detmold and Cox, pros., v. Engle, 5 Vroom 425, this court held that the property of ■citizеns of another state sent across this state to market in -other states, and dеlayed within this state merely for shipment, has no situs within this state for the purpose of taxation. The transportation of property is a constituent part of commerce, and a tax upon such property in its transportation from stаte to state, is a regulation of commerce among the states, and cannot constitutionally be imposed under state authority. Case of State Freight Tax, 15 Wall. 232; Erie R. R. Co. v. Pennsylvania, Id. 282; The Erie Railway Co. v. The State, 2 Vroom 531. The mode in which the tax is laid, whether it be directly on the property in the hands of the owner, оr on the carrier, as a tax on his business, is immaterial. In Erie Railway Co. v. The State, 2 Vroom 531, Chief •Justice Beasley assumеs that a tax directly on property in its transit across the state, would be a form of taxation “ undeniably unconstitutional-” From this premise, he argues that ■taxation of the carrier for the transportation of such property, is also unсonstitutional, because of the hC substantial 'identity in the results.”
It was contended that this assessment might be sustained, on the ground that the prosecutors are engaged in the business of selling cоal at Port Johnson, and that the coal for which they were assessed, was part of their stock with which that business was conducted.
The testimony does not sustain this рosition. The proof is, that the company does not make sales to local coal dealers -or customers, from their stock on hand. The extеnt of its ..business in the state is this: that in the course of a year,
Thе coal delivered in cars to local dealers and others at; Port Johnson, is ordered through the New York office, and shipped directly from the mines, аnd is delivered from cars-left on the track or sidings for immediate removal. Those-transactions are described as exceptional, and are shown tо be-so by the small amount of the sales in this way as compared, with the entire businеss of the company. In every other respect, except delivery in thе state, the business is transacted, out of the state. A tax upon freight taken up without-the-state and brought within it, is equally repugnant to the constitutional provision with a tax on freight carried across the-state. Cuse of State Freight Tax, 15 Wall. 232.
The assessment should be set aside, with costs.