State v. Cumberland & Pennsylvania Railroad

40 Md. 22 | Md. | 1874

Lead Opinion

Alvby, J.,

delivered the opinion of the Court.

The only question intended to he presented by this appeal, and which has been argued in this Court, is, whether the Act of the Legislature of 1872, ch. 274, is constitutional or not. All other questions arising on the pleadings have been waived, and the issue of fact disposed of by agreement.

The Act in question, is entitled “An Act to regulate the taxation of Coal Mining Companies in this State, for State purposes.”

By the first section it is provided, “ That it shall not he lawful for any Coal Mining Company or association in this State, to transport any coal mined in this State, on any railroad, canal, or by any boat or vessel, from any mine in this State, to any place in this State or elsewhere, for sale, until a State tax of two cents per ton of two thousand, two hundred and forty pounds, on said coal, be first paid to the railroad conrpany, canal company, or transportation company, undertaking to transport the same immediately from the said mine, or payment of the same be provided for, to the satisfaction of the said company undertaking to transport the same as aforesaid.” And the second section makes it unlawful for any transportation company, doing business in this State, to receive any coal mined in this State for transportation, immediately from the mine out of which the same may be produced, to any point in this State or elsewhere for sale, until the tax of two cents per ton shall be first paid by the party mining the same, to the transportation company; and every transjjortation company receiving coal so mined for transportation, shall be liable to the State for such tax; and it is expressly made the duty of the transportation company transporting the coal, to collect the tax before receiving the coal for transportation.

The third section makes it the duty of the financial officers of the transportation companies, so receiving coal for transportation, to make returns in writing to the Comptroller of the Treasury, within thirty days after the first day of January, April, July and October of every year, stating fully and particularly the number of tons of coal mined in this State, and transported on or over their works, for the three months immediately preceding each of the above mentioned days; and it is made the duty of such transporting companies, at the time of making such returns, to pay into the treasury of the State, the tax so by them required to be collected.

The fourth, fifth and sixth sections provide penalties for failure or neglect by the transportation companies, or their officers, to collect and pay over the tax as directed by the Act, and as to the manner of suing, the extent of recovery, and the enforcement of the judgment.

By the seventh section, it is provided that whenever it shall appear to the Comptroller, by the returns of the officers of the transportation companies, tlmt any coal mining company in this State lias bona Jide worked its mine, and paid the tax upon the coal mined by it, in accordance with the requirement of the Act, the Comptroller shall give such company a discharge for State taxes on its capital stock for the year in which such tax on the coal mined lias been paid; it being declared to be tbe meaning of tbe Act that such mining companies shall not. be taxed at tlie same time on both their production, and their capital stock.

The eighth section clothes the Comptroller with power to examine the officers of the several transportation companies, and other persons, under oath, as to the amount of coal mined and transported, and provides a penalty for refusing to he sworn to give information.

The Act was made to take effect from the day of its passage, and was approved on the 1st of April, 1872.

The present suit was brought under this Act by the State against the appellee, the defendant; the latter being a transportation company, engaged in transporting the coal mined in Allegany Comity, directly and, immediately from the mines, thence to he put in course of transportation to the various markets of the country for sale; the amount in controversy, and for which the action is brought, being the alleged amount of tax on the coal transported by the defendant from the date of the Act, to and including the thirtieth of June, 1872, and the penalty of ten per cent, on the amount of the tax alleged to heulue.

The question of the constitutionality of the Act is raised by a demurrer, and though interposed by tbe State to the second plea of the defendant, it brings before the Court the sufficiency of the declaration as well as the plea.

The declaration discloses upon its face the fact that the claim of the State against the defendant, arises solely under the Act just recited, and hence the question of the validity of the Act is fully presented by the demurrer.

The validity of the Act is called in question upon two distinct grounds ; first, that it is in conflict with the Constitution of the United States; and, secondly, that it is in conflict with the Constitution of this State.

Preliminary to the consideration of these questions, it is proper to say, that the taxing power of the State is of vital importance to it; indeed, so essential is the power, that the very existence of the State dep>ends upon the right to exercise it. All persons and property, therefore, within the jurisdiction of the State are liable to it; and the' power is conferred upon the State for the benefit of the • entire body politic. The power resides in the State as an attribute of its sovereignity, and the right of the Legislature, as the representatives of the people, to exercise it, should never be questioned, except in plain cases, where, the power is relinquished for valid consideration, or where to prevent its abuse, it has been placed under restriction, either as to the subjects liable to it, or the mode and manner of its exercise.

That the State’s power of taxation has been restrained and made subject to limitation by the Federal Constitution, as to certain subjects, is clear, and it is equally clear, that, with respect to the mode and manner of exercising the power by the Legislature, it has been restrained by the Constitution of the State.

1. Proceeding then to consider the questions immediately involved in this case, the first is, whether the tax upon coal, imposed by the Act of 1872, chapter 274, is repugnant to, or in violation of that provision of the Constitution of the United States, which declares that “ Congress shall have power to regulate commerce with foreign nations, and among the several States.”

With respect to this question, it is .to be observed that the Act imposes the tax of two cents per ton upon all coal mined in the State, and transported by any of the ways enumerated, to any point in the State or elseiohere, for sale. By the regular course of the coal trade of the State, as is well known as matter of public concern and notoriety, much the larger portion of all the coal mined in this State is transported without change of ownership directly from the mines, either to points beyond the State, or to points within the State, to be shipped for markets beyond the State limits. The Act, however, imposing the tax, makes no discrimination between that portion of the coal that may be transported to places within the State for sale, and that portion transported beyond the State for sale. All coal mined in the State and transported, whether in or beyond the State, is taxed alike.

Of course, it is not pretended that the clause referred to of the Constitution of the United States has any application, or creates any restriction, as to the tax imposed on the coal transported for sale exclusively within the State. The internal commerce of the State is exclusively within her control, and is liable to such taxation as the Legislature may think proper to impose upon it, provided there be no restriction in the State Constitution. But, in regard to the tax now under consideration, it is imposed directly upon the coal transported, and only that transported for sale; and as to all such portion of the coal as may be transported directly from the mines to places or markets beyond the limits of the State for sale, the tax would plainly appear to be an interference with and a restriction on inter-State commerce, and hence in contravention of that provision of the Federal Constitution which gives to Congress the power to regulate commerce among the several States.

Indeed, we are not left to construction or speculation as to this question. It has been recently before the Supreme Court of the United States, and has been there decided in a case so entirely analogous to the present, that we are relieved from doing more than to state the nature and ruling of that case.

The case referred to is that of The Reading R. Co. vs. State of Pennsylvania, 15 Wall., 232. There the Act of the' State of Pennsylvania inrposing the tax, contained many of the provisions that are found in the Act now under consideration. The Pennsylvania Act required the officers of the transportation companies of that State, to make returns to the auditor-general of the number of tons of freight carried over, through, or upon the works of such companies, for the three months immediately preceding the first days of January, April, July and October of every year; and the several companies were required, at the time of making such returns, to pay to the State treasurer, for the use of the State, certain rates of tax per ton on each ton of freight carried ; the rate on coal being two cents per ton, the same as ju’escribed by the Act before 'us. The Act of Pennsylvania, in an action by the State for the recovery of the tax, was held to be valid and in all respects constitutional, by the Supreme Court of that State, notwithstanding it imposed a tax upon freight, taken up within the State, and carried out of it, or taken up without the State and brought within it. But on writ of error, the Supreme Court of the United States decided otherwise, and held the Act to be repugnant to the provision of the Constitution of the United States which we have before referred to, so far as it operated to tax interstate commerce; and it was held that the transportation of freight, the subjects of commerce, is a constituent of commerce itself, and that a tax upon freight, transported from State to State, is a regulation of commerce among the States.

In that case, a question was made and much discussed, as to the nature of the tax, and upon what it was really and substantially imposed. On the one side, it was contended that it was simply a tax upon the franchises of the carrying companies, or upon their business, measured by the number of tons of freight carried. While on the other side it was contended, that the tax was laid upon the freight carried, and not at all upon the carrying companies ; and in accordance with this latter proposition was the opinion of the Court. The question arose from the ambiguity of the statute. But in the case before us there is no such question. The Maryland Act has made plain what the Court had to arrive at, in deciding upon the Pennsylvania Act, by inference and construction. Here the tax, by the very terms of the Act, is imposed upon the coal transported, and only upon such as may be transported for sale, and the carrying companies are, in terms, made tax collectors for the State.

The Supreme Court, in the case referred to, after concluding as to the nature of the tax, and that it was really, though not in terms, imposed upon the freight carried, say that beyond all question the transportation of freight, the subjects of commerce, for the purpose of exchange or sale, is a constituent of commerce itself; and that this is a proposition that has never been doubted. They then ash, “why is not a tax upon freight transported from State to State a regulation of inter-State transportation, and, therefore, a regulation of commerce among the States ? Is it not prescribing a rule for the transporter, by which he is to be controlled in bringing the subjects of commerce into the State, and in taking them out? The present case,” they continue, “ is the best possible illustration. The Legislature of Pennsylvania has in effect declared that every ton of freight taken up within the State and carried' out, or taken up in other States and brought within her limits, shall pay a specified tax. The payment of that tax is a condition, upon which is made dependent the prosecution of this branch of commerce. And as there is no limit to the rate of taxation she may impose, if she can tax at all, it is obvious the condition may be made so onerous, that an interchange of commodities with other States would be rendered impossible. The same power that may impose a tax of two cents per ton upon coal carried out of the State, may impose one of five dollars. Such an imposition, whether large or small, is a restraint of the privilege or right to have the subjects of commerce pass freely from one State to another, without being obstructed by the intervention of State lines.” And in concluding then-opinion, the Court say that “transportation is essential to commerce; and every burden laid upon it is pro tanto a restriction. Whatever, therefore, may be the true doctrine respecting the exclusiveness of the power vested in Congress to regulate commerce among the States, we regard it as established that no State can impose a tax upon freight transported from State to State, or upon the transporter, because of such transportation.” In other words, the State has no power to impose a tax upon inter-State transportation, such transportation being a constituent of commerce. This proposition is re-affirmed in the case of Osborne vs. The City of Mobile, 16 Wall., 479.

By the Act before us there is a positive prohibition to the transportation of coal “from any mine in this State to any place in this State or elsewhere, for sale,” until a State tax of two cents per ton is first paid, or provided to be paid. ' It is only the coal transported for sale that is the subject of this tax, and therefore it is by reason of the fact of transportation that the coal becomes liable to the tax at all; and it is quite clear that the Act contemplates the transportation of coal as freight beyond the State for sale ; and thus the payment of the tax becomes a condition precedent, and consequently an impediment to the prosecution of this branch of commerce. And though the tax be levied upon all coal transported, as well that transported to places within the State, as that transported beyond its limits, still, that can make no difference in the effect of the law. The State is at liberty to tax her internal commerce, but if an Act to tax inter-State commerce be unconstitutional, it is not cured by including in its provisions subjects within the taxing power of the State. This is explicitly decided by the case in 15 Wall., 276, 277.

Without saying more in regard to this question, we are of opinion, upon the authority cited, that the Act of 1872, chapter 274, so far as it affects to impose the tax upon coal transported from the mines in this State to places beyond the State for sale, is unconstitutional and void.

And having thus declared the Act so far void, as being in conflict with the Constitution of the United States, it becomes a grave question whether the Act in its entirety, irrespective of any other constitutional objection, does not fail. As a general rule, where a statute is partly void, and its provisions all relate to a single subject-matter, the question whether the other parts shall remain operative, depends in a great measure upon a consideration of the object in view in the passage of the Act, and in what manner and to what extent the unconstitutional part affects the remainder. Here we can hardly suppose that the Legislature would have passed the Act in question with a knowledge that it could only be effectual as to the coal transported to places within the State; and thus intentionally have discriminated against the citizens of the State and in favor of those beyond its limits. It would not be fair to indulge such a presumption with respect to the purpose of the Legislature. But, without deciding this question, wo shall proceed to consider the second constitutional objection urged to the Act.

2. This question is founded on the 15th Article of the Bill of Eights of this State. It is said that the Act in question is in violation of this Article of the Bill of Eights, because it imposes a specific tax, without regard to the value of the article taxed, and without regard to the principle of equality and uniformity prescribed by tbe Bill of Rights.

The article of the Bill of Rights relied on declares that “every person in the State, or person holding property therein, ought to contribute Ms proportion of public taxes for. the support of the Government, according to his actual worth in real or personal property; yet fines, duties or taxes may properly and justly be imposed or laid with a political view, for the good government and benefit of the community.”

This is a fundamental declaration of the right of the citizen against unequal and undue assessments of taxes by the Government. It was not deemed a sufficient guarantee that no tax should be' imposed but by the representatives of the citizen in the Legislature, but, in order to prevent abuse of the power, which would otherwise be unlimited, the Legislature is required to cause all public taxation for the support of the Government to be fair and equal in proportion to the value of the property assessed, so that no class or species of property shall be unequally or unduly taxed. And this declaration of the right of the citizen is not simply directory to the Legislature, to be observed or not as that department of the Government may determine or think proper ; but it is a positive limitation or restriction on the power, and whenever it is transcended or disregarded, it becomes the duty of the Courts to declare the Act void. Hence, this Court has repeatedly declared that taxes, if imposed in violation of this fundamental rule, would be illegal and void. In the case of the Mayor & City Council vs. Balto. & Ohio R. R. Co., 6 Gill, 291, the Court, in referring to a tax on the franchise of an incorporated bank, say, if it were a special tax, technically speaking, levied for the support of the government of the State, it would be clearly unconstitutional and void, as being repugnant to the 15th Article of the Declaration of Rights. And in another part of the same opinion the Court say: “The argument is wholly unsound when applied to Maryland, that a franchise, if subject to taxation, may, by its excessive exercise be destroyed or rendered valueless; because by the 13th, (now 15th) Article of the Bill of Eights, the Legislature can impose no tax upon it, which is not equally borne by every other species of property in the State in proportion to its value.’' And language equally decisive, has been used in other cases; as in the case of the State vs. Sterling, 20 Md., 520; and also that of Tyson vs. The State, 28 Md., 587.

In construing this declaration of right, however, the terms employed can only apply to a direct tax on property, and not that the power of the Legislature should be limited as to the objects of taxation. The restriction is only intended to prevent an arbitrary taxation of property according to kind or quality, without regard to value. Sedg. on St. Law, 557. There are many other species of taxes that have been imposed from the foundation of the State goverment to the present time; and a power so long exercised unquestioned, could only be doubted upon the most conclusive argument against it.

What then is the character of the tax imposed by the Act in question? It is, beyond all doubt, a direct and specific tax upon coal, and therefore a tax upon property. It is not assessed with reference to any uniform value of the coal, nor with reference and in conformity to any rate of taxation imposed upon the other property of the State. It is therefore a specific, arbitrary tax levied for the support of the government, on a part of the personal property of the State, without regard to value, uniformity or equality. Upon the same principle that this tax of two cents per toil is attempted to be imposed, if legal, the State could impose fifty cents, or even a dollar per ton on all the coal mined and transported.

ISTow, the capital stock of the several mining companies of the State is liable to taxation according to a fixed and certain rate; and the stock being the representative of the whole property of the corporation, the payment of the tax on the capital stock exempts from taxation all the property both real and personal of the company. And although the State may elect to tax either the capital stock, or the real and personal property of the company, yet it cannot tax both; and if it elect to tax the real and personal property, and not the stock, such property must be assessed according to the same equal and uniform rate, in proportion to its value, as all other property in the State, whether owned by individuals or corporations. It is not competent to the Legislature to discriminate as between the different species of property, and to tax some by one rule and some by another. All must bear the burthen alike; for if it were otherwise, it would be impossible to observe the rule, which requires that every person in the State, or person holding property therein, shall contribute his proportion of public taxes for the support of government, according to his actual worth in real or personal property. The protection afforded by the rule, consists in the equality and. uniformity required, whereby one person shall not be taxed more nor less than another, because he may happen to own a different species of property from that owned by the other. Hence, the Legislature could not do what was attempted to be done by the Act under consideration; for although the State might elect to tax the property of the coal companies rather than their capital stock, yet the entire tax exacted from them could not be, in the shape of a special tax, laid exclusively upon one species of personal property, namely, their coal mined for transportation. Such legislation most clearly violates the Article of the Bill of Rights to which we have referred; and so declaring, we shall affirm the judgment of the Court below.

(Decided 5th March, 1874.)

Judgment affirmed.

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Dissenting Opinion

Stewart, Bowie and Robinson, J.,

dissented, and Judge Stewart delivered the following dissenting opinion:

The only question involved in this appeal is whether the Act of 1872, chapter 274, purporting to regulate the taxation of coal mining companies in this State is a valid exercise of legislative authority? The Circuit Court pronounced the law a nullity, as contravening the fifteenth Article of the Declaration of Rights. The counsel for the appellee now insist that it is repugnant to the Constitution of the United States.

These propositions are novel and startling to me, and if sustained by the authority of this Court, it is clear must create doubt as to the existing legislation of the State, in regard to the revenue, and seriously embarrass the Legislature in devising the means, according to its discretion, by the imposition of taxes, and the collection of the necessary revenue, to sustain the Government, and credit of the State. The 27th, 28th and 30th sections of Article 3 of the Constitution, are provisions showing the grave formality required in the enactment of a law. The 17th section in order to further guard against hasty, partial, or unconstitutional legislation, and encroachment upon the other departments, confers the qualified veto power upon the Governor. Every bill, before it can become a law, must have his sanction, not as a matter of mere form, but of substance ; or be passed by three-fifths of all the members elected to each House. The law in question having been enacted under all the forms required by the Constitution, by the Legislative branch, and been approved by the Governor, thus giving it the sanction of two great departments, ought not to be set aside by this Court upon any doubtful theory. The plainest principles of comity demand that every fair intendment should be made to sustain it. All Courts regard it as a grave occasion to justify them in pronouncing a law thus approved, to be of no effect. In the case of Baltimore vs. State, 15 Md., 376, it was said by Judge Tuck, delivering the opinion of this Court, “that it was the duty of the Court to give such construction to Legislative Acts as will not bring them in conflict with the Constitution; and it should clearly appear that they cannot be supported by any reasonable intendment, a reasonable doubt will be solved in favor of the Legislative Act, and*it will be valid.” To the same effect are the cases of the State vs. R. R. Co., 12 G. & J., 400 ; Cromwell vs. State, 12 G. & J., 257 ; and Wright vs. Wright, 2 Md., 429.

Chief Justice Marshall, in Fletcher vs. Peak, 6 Cranch, 128, says it is not on slight grounds of implication and vague conjecture that the Legislature is presumed as transcending its powers and its Acts void.

Justice Washington, in Ogden vs. Sanders, 12 Wheaton, 170, says it is but a decent resjiect due to the wisdom, the integrity and patriotism of the Legislature by which any law is passed, to presume in favor of its validity; they legislate under the solemnity of an oath, which it is not supposed they will disregard. Chief Justice Shaw, in 16 Pickering, 95, says it must be a clear case, beyond reasonable doubt, to invalidate an Act of the Legislature.

It is an apposite remark of Mr. Cooley, in his excellent treatise on Constitutional Law, pages 487, 488, that there are cases of constitutional action by the representatives of the people which cannot be reached, except through, the ballot-box; and others, where the line of distinction between that which is allowable or otherwise, is so shadowy, that the decisions of the Legislature must be accepted as final, although the judicial opinion might be different.

The Supreme Court of the United States has always regarded the State power of taxation as essential to its preservation, and in determining questions as to the extent of the power of the State, so far as it might affect her relations with the General Government, has been cautious not to trench upon the rights of the State in the discharge of this sovereign prerogative. In regard to the welfare of the Union as of the State, that Court has considered this necessary attribute of State sovereignty should not be impaired or extinguished upon any possible repugnancy in the exercise of their respective powers. But so far from this law being of doubtful validity in regard to its alleged conflict with the Constitution of the United States, it appears to me that much argument is required to show that it can upon any reasonable hypothesis be construed as interfering with any of the powers confided to the United States. A brief reference to the character of this law shows its purpose and effect, and enables us to determine, if it is incomputable either with the Constitution of the United States, or the Bill of Rights of this State. The case having been submitted on demurrer, we are confined to the terms of the law as it appears in the record, and which is, no doubt, a literal transcript from the statute book; and what is there upon its face to show it violates any provision of the Federal Constitution ? The title of the Act, although no part of the law, may be resorted to, in order to show the intention of the Legislature. This purports to be, to regulate the taxation of coal mining companies; and the seventh section declares the meaning and intent of the Act to be for a like purpose; the other sections provide the necessary means, according to tire discretion of the Legislature, to enable the said tax to be collected, by holding the transportation companies liable for the payment of the tax. The evident object of the law, was not to impose a tax upon the transportation of coal, but upon the mining of coal for sale, upon which the Legislature deemed it proper to impose a tax of two cents per ton upon any company engaged therein ; otherwise, it was to be taxed upon its property. The Legislature had the power either to impose the special tax, upon every ton of coal mined, if it deemed it proper to do so, or it had the right to tax the business of mining coal hy corporations or individuals. The State had as much right to do so, as to require the coal dealer elsewhere, to pay a license for the sale of coal, or to pay a certain sum for each ton of coal he might sell. If that company is to he discharged from the payment of this tax, because its imposition interferes with commerce between the States, every item of property in the State, capable of being transported from place to place, would be equally exempt from taxation, because any tax upon it, might, to some extent, he considered as affecting its transportability, and thus conflicting with the right of the United States to regulate commerce between the States. If such construction is to he given to the clause of the Federal Constitution upon that subject, the power of the State will be effectually annihilated. No such authority has ever been claimed, for the United States, by the wildest advocate of Federal power. The Supreme Court, in the recent decision in 15 Wall., found no objection to the tax on gross receipts of railroads, 'although it might affect inter-State commeróe. It conceded the power of the State to impose taxes ad libitum upon the property or employment of its citizens. But where the State undertook to tax freight or tonnage on goods merely passing over its highways, that Court held it was imposing a tax upon the property of citizeffs or non-residents simply passing through the State, and thus interfered with commerce between the States. The law now in question, puts no tax on freight or tonnage, but upon the company mining coal in the State fot sale. There is no resemblance in the. features of the two laws, and according to my apprehension no just deduction can be drawn from the decision adverse to this law. In what possible respect can the imposition of such a tax conflict with the powers of the Government of the United States, either practically or potentially ?

The question as to the extent of the power of the State over taxation, in reference to any limitation thereon, consequent upon the delegation of certain general powers to the United States, was very fully discussed by this Court in the case of Howell vs. State, 3 Gill, 24. It was clearly stated, and which accords with the tenor of the second, third, and fourth Articles of our Bill of Rights, “that it is established that the States hold all the powers which they originally possessed, except those delegated to the United States, or prohibited to the States ; that unless the right of the State to tax property like that under consideration, (a tax on vessels licensed by the United States) has been alienated or surrendered, the power to do so remains, and may be exercised. To render a State law unconstitutional, or extinguish a State power, by implication, on the ground that it is repugnant to powers vested in the General Government, the repugnancy must he clear, immediate and direct, and not that which is merely speculative, indirect and contingent; not a mere possibility of inconvenience in the exercise of powers, hut an immediate and constitutional repugnancy, that can, by implication, alienate or extinguish a pre-existing right of sovereignty.—The distinction is between an immediate, direct and necessary conflict of powers, where power stands arrayed against power, as in the case of Gibbons and Ogden; and one that is merely possible, and often occurs in our form of government, where powers, harmonious in themselves, are seen operating upon the same subject.” To the same effect is the fourth rule of interpretation in Story’s Com., section 447. “In cases of implied limitation or prohibition of power, it is not sufficient to show a possible or potential inconvenience; there must be a plain incompatibility or direct repugnancy, or extreme practical inconvenience, leading irresistibly to the same conclusion.”

As we understand the recent rulings of the Supreme Court, there is no conflict between them and former decisions, conceding the power of the State to impose such a tax as that in question. This is rendered more clear by the decison in the case of the State Tax on Railway Gross Receipts, 15 Wall., 284, affirming the right of the State to impose such tax. The Court say that their conclusion resulted from the fact that the law levied a tax on freight as such, and not upon the company. A different construction, carried to its logical result, would completely annihilate the State’s power of taxation, under the fallacious idea that it interferes with inter-State commerce. In the more recent case of Osborne vs. Mobile, 16 Wall., 479, the Chief Justice refers to the two preceding cases, and disclaims any such meaning. Evidently apprehensive that the judgment might be perverted to the prejudice of the State; and to guard against such construction, takes occasion to announce a pertinent political truth: “ That it is as important to leave the rightful powers of the State in respect to taxation, unimpaired, as to maintain the powers of the Federal Government in their integrity.” Whenever this attribute of sovereignty, the right of taxation, over such a subject as the one now in question is effectually assailed, upon the ground that it essentially invades the province of the Federal Government, it will be not the less fatal to the one than to the other Government. Such a doctrine will be destructive to both. Certain it is, if such is to be the claim of the Federal Government, the Legislature of a State, without the power of taxation, might as well be abolished.- It was correctly stated by Judge Story in the 444th section of his Commentaries on the Constitution:

‘ ‘ according to this mode of construction, the power of taxation in Congress, or the power to regulate commerce, would annul the whole power of taxation of the States; and thus operate a virtual dissolution of their sovereignty; such a proposition has been constantly disclaimed.”

But Judge Story was mistaken in the disclaimer of such authority, if a simple law like this, imposing a tax of two cents per ton upon the mining of coal is to be held void, upon the theory that it interferes with inter-State commerce.

To prevent any misconstruction, the Supreme Court, through its Chief Justice, in the late case, says: “In several cases decided at this Term, we have had occasion to consider questions of State taxation. In one, (State Freight Tax,) we held that the State could not constitutionally impose and collect a tax upon the tonnage of freight. In another, (Tax on Railway dross Receipts,) we held that the tax upon gross receipts for transportation by railroad and canal companies, chartered by the State, is not obnoxious to the objection of repugnancy to the constitutional provision. The tax on tonnage was held to be unconstitutional, because it was in effect a restriction upon inter-State commerce. The tax on gross receipts was held not to be repugnant to the Constitution, because imposed on the railroad companies in the nature of a general income tax. The difficulty of drawing the line between constitutional and unconstitutional taxation by the State was acknowledged, and has always been, by this Court but; that there is such a line is clear, and the Court can best discharge its duty by determining in each case on which side the tax complained of is.” “ It is not everything that affects commerce that amounts to a regulation of it, within the meaning of,the Constitution. We admitted that the ultimate effect of the tax on the gross receipts might be to increase the cost of transportation, but we held that the right to tax gross receipts, though derived in part from inter-State transportation, was in the general authority of the States to tax persons, property, business or occupation within their limits. That the tax there in question, was no more a tax upon inter-State commerce, than a general tax on drayage would be, because the licensed drayman might sometimes be employed in hauling goods to be'transported beyond the limits of the State. We think it would be going too far so to narrow the limit of State taxation.”

The same doctrine is held in Howell vs. State. The Court, say: “'Conceding to the United States, to the fullest extent, the power of regulating commerce, not only foreign, hut domestic between the States, the exercise of such power, does not conflict with the right of the State to impose taxes, except in cases where the exercise of the Federal authority and the right of the State do actually conflict.” The opinion of Chief Justice Marshall, in McCulloch vs. State of Maryland, 4 Wheaton, 428, is referred to as authority. He says, “Before we proceed to examine the argument advanced by the Counsel of the State of Maryland, and subject it to the test of the Constitution, we must he permitted to bestow a few considerations on the nature and extent of this original right of taxation, which is acknowledged to remain with the States. It is admitted, that the power of taxing the people and their property is essential to the very existence of the government, and may he legitimately exercised on the objects to which it is applicable to the utmost extent to which the Government may choose to carry it. The only security against the abuse of this power is found in the structure of the Government itself. In imposing a tax, the Legislature acts ujoon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. The people of a State, therefore, give to their Government a right of taxing themselves and their property, and as the exigencies of Government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representatives, to guard them against its abuse.” “If we measure the power of taxation residing in a State, by the extent of sovereignty which the people of a single State possess, and can confer on its Government, we have an intelligible standard, applicable to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and property of the State unimpaired; which leaves to a State the command of all its resources, and which places beyond its reach, all those powers which are conferred upon the Government of the United States, and all those means which are given for the purpose of carrying those powers into execution. We have a principle which is safe for the States, and safe for the Union. We are relieved, as we ought to be, from clashing sovereignty; from interfering powers; from a repugnancy between a right in one government to pull down what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy, what there is a right in another to preserve. We aré not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power?” It must be admitted that property like that which is now the subject of examination was originally and before the adoption of the Constitution of the United States, embraced by the taxing power of the State. All property were legitimate objects of taxation, over which the sovereign power of the State extended, because this power is an incident of sovereignty, and is co-extensive to that to which it is incident; the power of taxation extends to all the people of the Government, and embraces everything which may fairly be considered as constituting a part of the mass of property within the State. This is a cardinal principle, on the preservation and application of which, the existence of the State Government depends.

In the case of the Providence Bank, 4 Peters, 563, Chief Justice Marshall further says, “that the power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic— that it is an original principle which has its foundation in society itself. It is granted by all, for the benefit of all. It resides in Government as a part of itself and need not be reserved when property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. However absolute the right of any individual may be, it is still in the nature of that right, that it must bear a portion of the public burthens ; and that portion must be determined by the Legislature. This vital power may be abused ; but the interest, wisdom and justice of the representative body, and its relations with its constituents furnish the only security against unjust and excessive taxation, as well as unwise legislation. That the taxing power is of vital importance; that it is essential to the. existence of government; are truths which it cannot be necessary to re-affirm. They are acknowledged and asserted to by all. It would seem that the relinquishment of such a power is never to be assumed.” See also Mayor of Baltimore vs. Baltimore and Ohio Railroad, 4 Gill, 292. If there is any doubt of the constitutionality of this law, ought not the State Legislature to have the benefit of such douht ? and that those denying the power should be compelled to invoke the determination of the question by the Supreme Court, as a decision of this Court against the law renders it an absolute nullity, and the State has no power to have such review. Unless that Court whose peculiar province it is to decide such questions, shall unmistakably adjudge this law to be in violation of the Constitution of the United States, I shall hold to what I consider the true constitutional doctrine, the preservation and maintenance of the just authority of this State to pass this law, and to impose within her limits such taxes for the support of the Government, as do not and cannot conflict with any reasonable exercise of the authority of the United States. Neither do I find anything in the terms or spirit of this law repugnant to the 15th Article of the Declaration of Rights.

That Article has been repeatedly examined by this Court, and in no solitary instance, has the power of the Legislature to pass such a law as this been denied.

If we pronounce it a nullity, it will certainly be the very first case.

The main object of the Declaration of Eights was to proclaim certain leading political truths, as infallible axioms in the science of government, according to the American theory—to prescribe boundaries to the several departments thereof, and to establish fundamental rules to guide them. It must, from the nature of the case, deal in generalities, and therefore any limitations upon power, provided by that instrument, are mainly directory, because as a general proposition, the judicial determination, as to their power, extent and operation cannot be afforded. Crane vs. Meginnis, 1 G. & J., 472.

The legislative department possesses original authority to pass any law over any subject of legislation within this State, unless restrained by constitutional prohibition, and in the great mass of cases they are the ultimate judges of their own authority. The representatives are amenable to their constituents, the people, and in such cases that consideration and their official oath are the only checks upon them. This Fifteenth Article was not the grant of the taxing power to the Legislature, but a limitation upon that power which it already possessed.

The Fifth Article declares that the inhabitants of Maryland are entitled to the Common Law of England. The British Parliament exercises transcendent and uncontrolled legislative power in virtue of the principles of the common law.

The General Assembly of Maryland, over all subjects of legislation within her limits, would exercise as great and transcendent powers as the British Parliament, within the scope of its authority, if there were no constitutional limitations. It was so stated by Chief Justice Chase in the case of Partridge vs. Dorsey, 3 H. & J., 322, and he quotes Coke and Blackstone as to the extent of parliamentary authority “that the power and jurisdiction of parliament is so absolute that it cannot be confined either for causes or persons within any bounds” that it has “sovereign and uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding, of laws, concerning matters of all" possible denominations, ecclesiastical, temporal, civil, maritime or criminal,” and that “all mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal.” See also Crane vs. Meginnis, 1 C. & J., 413.

If the General Assembly of Maryland pass a law oppressive to any one, and against what might be considered natural justice, the only remedy under our system of Government, in the absence of constitutional restraint, is by appeal to the people, who can displace the representatives, occasioning the injury, and select others to repeal the obnoxious law; such remedial power is recognized by the seventh Article of the Declaration of Rights in these terms: “That the right of the people to participate in the Legislature is the best security, and the foundation of all free government; for this purpose elections ought to he free and frequent.”

No such power is conferred upon the Courts. It is the duty of the Legislature to enact such laws for the government of the State as to it may seem just, and their authority is unlimited and unfettered by judicial supervision, unless there be a palpable violation of the Constitution. The 14th Article provides that no tax, aid, charge, burden, or fees, shall be levied under any pretence without the consent of the Legislature, necessarily implying its power to do so. The 15th Article prescribes a rule to control the Legislature in the exercise of the taxing power. The limitation provided by this Article from the nature of the case must he mainly directory, and designed to impose its moral restraint upon the consciences of the members of the Legislature affected by their official oath and responsibility to their constituents, and rarely reviewable in any ■case by the Courts. To show that this is the leading doctrine of tliis Court, and the extreme caution with which it regards any interference with the legislative discretion, we need only repeat what was said in Waters vs. State, 1 Gill, 308 : £ £ In the argument it is contended, that the tax in controversy (a tax of a specific sum on each county) is one laid for the support of Government. If it were conceded that this was the fact, we should by no means he prepared to pronounce against it as violating the Bill of Rights. Before such a judgment could he formed, it ought to appear clearly that persons taxable, are not made to contribute according to their actual worth in real and personal property. We should he hound to presume, in the absence of evidence, that the tax imposed was laid according to the provisions of the Constitution. There is nothing on the face of the law which indicates that the Legislature adopted an arbitrary rule in the apportionment of the tax, without regard to the constitutional provision on the subject.” Before -a law imposing a tax of a specific sum on each county for the support of Government can he considered as violating the Bill of Rights, ££it ought to appear clearly that the persons taxable are not made to contribute according to their actual worth in real and personal property. In the absence of evidence this Court is hound to presume that such a tax was laid according to the provisions of the Constitution, and that the Legislature may have divided it among the corintios, according to the valuation of property in such local jurisdictions, and had such evidence before them as guided their judgment in that particular.” The legislative discretion is recognized, and in all cases, in the absence of sufficient data to the contrary, the Court cannot undertake to decide that they have violated their trust.

Taking the 14th and 15th Articles together, it is manifest they were intended to assert as a fundamental rule of legislative action, that persons, as such, without property, were not proper subjects of taxation, hut only persons according to their property; and the latter clause of the 15th Article was inserted from abundant caution to prevent any construction to limit the power of the State to impose such other reasonable taxes according to their discretion, where the purposes of the Government required it.

There certainly was no other reason except this, requiring prohibition to tax per capita, or to tax paupers. Nothing could be effected by taxing this latter class, because ex nihilo nihil Jit. This is clearly manifest from the decision in the case of Egan vs. Charles County Court, 3 H. & McHenry, 170, where the Legislature had imposed a tax on attorneys, as other occupations, employments, business and officers, have been and still are taxed, and the question was raised there as here, that the Legislature could do no such thing, but the Court affirmed the power of the Legislature to impose the tax on the attorneys. This was an early case, and in a later one—the Germania vs. State, 7 Md., 1—this Court decided that the State has the power to tax the amusements of the people, either for the purpose of revenue or as a police regulation. They assert that with the exercise of this power in any particular case the Courts have nothing to do; they fulfill their office when they give effect to the constitutionally expressed will of the Legislative branch. The Bill of Rights is referred to as the authority. This power of the Legislature to impose taxes, as to it may seem just and proper, has in every instance when brought before this Court, been'recognized.

In the case of the Mayor vs. B. & O. R., 6 Gill, 288, it was announced by this Court as an unquestionable rule, that the right of taxation is never presumed to be surrendered by the sovereign power; and such surrender is never made unless it is the result of express terms or necessary inference. A decision of this Court denying the power of the Legislature to pass this law, virtually extinguishes the discretionary authority of the Legislature over the subject of taxation. In State vs. Mayhew, 2 Gill, 501, this Court says, “ For the time, manner of payment, and collection of the public taxes, it is the peculiar province of the Legislature to provide. It may make the tax levied, a charge or lien on the property assessed, or its profits, or a personal charge or debt to the owner thereof. A power exercised by the General Assembly from the adoption of the Constitution ought to be almost conclusive evidence of its possession by that body—a contemporaneous construction of the Constitution of such duration ought not to be shaken, but upon the ground of manifest error and cogent necessity.”

In Burgess vs. Pue, 2 Gill, 11, it is stated that the Legislature may delegate the power of taxation to the taxable inhabitants, for the purpose of raising a fund for the diffusion of knowledge and the support of primary schools. Grants of similar powers to other bodies for political purposes, have been co-eval with the Constitution, and no serious doubts have ever been entertained of their validity.

Some objection was made to this law, as imposing an unauthorized duty upon the transportation companies, in making them the collectors of the tax. The Legislature had the right to make them discharge this duty, and to hold them answerable for the payment of the tax imposed and due.

The case of the State vs. Mayhew, just referred to, expressly affirms such right.

In the case of the State vs. Sterling, 20 Md., 516, as in the case of Slate vs. Mayhew, this undoubted authority of the Legislature is specifically restated in the strongest terms. •‘The power of the Legislature is recognized not only as to the imposition of taxes, but as to the assessing of the value of property, besides prescribing the details of their collection.” What other reasonable construction can be put upon the power of the Legislature to impose taxes according to the value of the property held by a person, with authority to tax that value, unless the provision of the Fifteenth Article is to be considered merely as directory upon that body, and its conduct not the subject of review by tbe Judiciary? In tbe case of State vs. Sterling, tbe Court says, “That tbe Legislature has power to value any taxable property within tbe State, and assess thereon a just proportion of tbe public taxes, cannot be questioned: Tbe exercise of such a power, in conformity with tbe principle of equality of taxation of taxable values, could, in no legal sense, be a violation of tbe terms of tbe Thirteenth Article, which simply declares tbe liability of persons owning property in tbe State, to contribute for the support of tbe Government in proportion to their actual worth in such property. Tbe condition of tbe liability, that it should be proportional to actual worth, was undoubtedly to prevent abuse of tbe taxing power, and in that respect, prescribe a general rule, to which all legislative measures for tbe imposition and collection of taxes, should conform. The duty of ascertaining taxable values, and of assessing and collecting tbe taxes thereon, necessarily rests in tbe discretion of tbe Legislature, and it may perform that duty by its own legislative acts, or through tbe agency of such officers or tribunals as it may appoint for that purpose. Tbe legislative power to assess and compel tbe payment of State taxes to be made directly to tbe State Treasury, without other official assistance, implies power to determine the value of the property to be assessed, and consequently a power of discrimination in selecting and fixing tbe taxable values. These powers have been so long exercised without objection, that they cannot be brought in question now without contravening tbe settled policy of tbe State.”

In the effort to collect sufficient revenues for tbe exigencies of tbe public service, we find various and repeated evidences of this power of tbe Legislature to impose taxes upon almost all conceivable subjects. Every variety of scheme which tbe ingenuity of tbe representatives in tbe Legislature could devise, has been resorted to. A general ad valorem tax on property has been imposed, and there have been specific taxes on certain articles ; direct and indirect levies have been made; license fees upon those who pursue particular avocations; tolls upon property or persons using the public works controlled by the State ; stamp duties; a tax on corporations or companies annually to he paid, in proportion to their stock, or other basis; marriage licenses ; fees from ferries ; public loans ; the vendors of goods at private sale or public auction; upon occupations or employments. Bode vs. State, 7 Gill, 326. Upon the products of the land and the bounties of the water; upon amusements; litigation; the commissions of officers; the gross receipts of railways. Negro slaves, at one time a large item of property, have been valued, and specifically taxed according to their ages, irrespective of actual worth, in different counties. Upon the transfer by law of property by the death of the owner, a considerable revenue has been raised by the tax on collateral inheritances, decided by this Court to he a valid exercise of power. Tyson vs. State, 28 Md., 587. Can there he any doubt that a specific tax might he imposed upon the assignment of property by deed, bill of sale or other conveyance amongst the living?

The Legislature has relieved property from the burdens of taxation; it is within their discretion to do so ; whether just and judicious to do so, it is their province to decide; such is now the remarkable exemption of mortgages, releasing from the burden a large mass of property. Whilst some property may thus not he taxed, other items may he taxed twice, or persons may possibly he taxed as the holders of property where they may not he the owners thereof; or the property in fact has no existence. It is impossible to have taxes upon persons on account of their property precisely equal, and if they are to he ’considered void if not so, the Legislature cannot practically devise the means to support the Government. The fundamental rules to direct the action of the G-overnment, and its practical administration, must have such reasonable and natural construction as the nature of the case requires. Mathematical precision cannot be applied to them. In the assessment of property, with every possible effort to have uniformity of value, it is not within the compass of human ability to accomplish more than approximation to equality of taxation. Any attempt of the Courts to establish a standard other than the one prescribed in the Declaration of Rights, would be nugatory. That each person upon the same description of property ought to pay an equal tax, nobody will question; but if such is not the case, by what mode can the Courts undertake to apply the remedy? The Declaration of Rights does not require the Legislature to collect her revenues by taxes on property. They may be raised otherwise, or taxes may be imposed partly upon property and partly in other modes. Notwithstanding the express provision of the Declaration of Rights against poll taxes, the practice sanctioned by law of compelling persons to work upon the public roads and highways has prevailed from the foundation of the Government. -Who doubts the authority to compel this service under the latter clause of the fifteenth Article ? The Constitution of Illinois, Article 9, section 2, provides that the mode of levying a tax shall he by valuation, so that every person and corporation shall pay a tax in proportion to the value of the property held in possession. In Sawyer vs. City of Alton, 3 Scam., 130, in regard to this provision, the Court say: “ The framers of the Constitution intended to direct a uniform mode of taxation on property, and not to prohibit any other species of taxation, but to leave to the Legislature the power to impose such other taxes as would be consonant to public justice, and as the circumstances of the country might require. -We cannot believe they intended that all the public burthens should be borne by those having-property in possession, wholly exempting the rest of the community, who by the same Constitution were made secure in the exercise of the rights of suffrage and ail other immunities of the citizen.” In the State vs. North, 27 Missouri, 414, the Court decide that the Constitutional requirement of equality extends to such objects of taxation as the Legislature shall determine to be properly subject to the burden. The came conclusion was reached in the case of the People vs. Coleman, 3 Cal., 46. The power to determine the persons and the objects to be taxed is intrusted exclusively to the Legislative department.. Wilson vs. Mayor of New York, 4 E. D. Smith, 675.

Notwithstanding a requirement that the rate of taxation shall be uniform, the Legislature may levy specific taxes on corporations, and exempt them from municipal taxation. Kneeland vs. Milwaukee, 15 Wisconsin, 454.

The universal acquiescence in the exercise of this discretionary power as to taxation by the Legislature, ought to estop the Courts from questioning its legitimate employment, unless no question is to be considered settled, but all matters pertaining to the action of the Government to be forever debatable.

Constitutional exposition by all parties; acquiescence by enlightened Courts through a long series of years, place the practice upon a foundation of authority which can not be shaken, without delivering over the subject to perpetual and irremediable doubts. 12 Wheaton, 190.

In the case of Watkins vs. Watkins, 2 Md., 356, it was said by Chief Justice LEeuAsro, “that in all human contrivances confidence must be reposed somewhere, and that under the distribution of the powers of Government in our State, it is not given to the Judiciary to compel action on the part of a co-ordinate branch of the Government.” Judge Stohy, in his Commentaries, sec. 456, refers to an admirable remark of Burke, which cannot be too often repeated, “that those called upon to interpret a Const! tu.tion should always bear in mind that Government is a practical tiling, made for the happiness of mankind, and not to furnish a spectacle of uniformity to gratify the schemes of visionary politicians.” A large and almost unbounded discretion must he lodged in some department of the Government, which is here the Legislative Branch.

Believing the uniform practice of our predecessors to have been conformable to this theory and construction of out Declaration of Rights, and no reason, from the nature of this law, to justify the Circuit Court in pronouncing it a nullity, I think its judgment ought to he reversed.

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Dissenting Opinion

Robinson, J.,

filed the following dissenting opinion:

I am obliged to enter my dissent in this case. The Act of 1872, ch. 274, imposing a tax of two cents on every ton of coal mined in this State for transportation, is not, in my opinion, in conflict with Article 1, section 8, sub-section 3 of the Constitution of the U. States, which confers upon Congress the power to regulate commerce with foreign nations and among the several States ; nor is it in conflict with the Constitution of this State, which declares “that every person in the State, or person holding property therein, ought to contribute his proportion of public taxes for the support of the Government, according to his actual worth in real or personal property; yet fines, duties, or taxes may properly and justly he imposed or laid with a political view for the good government and benefit of the community.” Art. 15, Declaration of Rights.

If, however, it he in conflict with the Constitution of this State, as the majority of this Court have decided, then it was altogether unnecessary, in my judgment, to have decided whether it was in conflict with the Constitution of the United States.

Upon no one clause of the Constitution of the United States have the Judges of this country, both Federal and State, differed so widely in regard to its construction, as the one which confers upon Congress the power to regulate inter-State commerce, aud I cannot hut regret that a bare majority of this Court should have deemed it proper to commit this Court to a construction of this clause, when sucli construction was not necessary to the decision of the case under consideration.