*1 Freight Tax. Case of of the case. Statement Freight Tax. Case of the State Company Pennsylvania.] Railroad [Reading is a or of con- transportation freight, subjects of 1. itself. part stituent commerce State, upon to freight, transported 2. A tax among the States. regulate commerce regard subjects 3. Whenever system National, or of one uniform is asserted are in their nature admit regulating control plan regulation, exclusively or within Congress. State, through or or from Transportation passengers merchandise another, one Stnte to is of this nature. freight, within up 5. Hence a statute of a State taken imposing upon it, brought and up the State and carried out of without the State or taken it, is of the United repugnant provision within to that of the Constitution States, com- have Congress ordains that shall “ States, with foreign among merce nations and several Indian tribes.” Court case Error Supreme Pennsylvania; thus: being

On the 1864, 25th August, Legislature Pennsyl- vania an act entitled “An act additional passed provide revenue for the use of the Commonwealth.” It enacted— 1. That treasurer, cashier, or other president,

“Section officer, every financial railroad steamboat company, company, canal and slaekwater and all company, navigation company, now or other hereafter business within this companies doing whose works whether upon freight may transported, or individuals, and whether such such company company receive shall compensation transportation, toll, shall receive tolls only, except turnpike companies, shall, within companies, plank-road bridge companies, thirty after first and October of days days January, April, July, make return to the every year, under writing auditor-general, affirmation, oath or the number of stating fully particularly ons of carried over, the works of said through, for the three months each of immediately ompany, preceding oe the

Statement of the case. and the above-mentioned each days; companies, except return, as time of such to the aforesaid, shall, at the pay making treasurer, on Commonwealth, State for the use of the each two rates, thousand so .at carried, tax pounds freight following viz.: “ First, mines, quarries, clay-beds, on the condition product and in the therefrom, in which said he taken 2 products cents. “ Second, timber, food, also, stock; on hewn animal including live forest, vegetable,

products of and the value agricultural products, other by labor, of which has been increased cents. “ articles, Third, on all other 5 cents. the same shall be carried over

“Where and freight upon dif- lines, be with tax but continuous said shall freight chargeable ferent but line, it had beencarried one and the wholetax shall upon as if one said as the treasurer may such paid by companies whose lines of select and notify Corporations improve- thereof. for the and are used others freight, ments use, arise tolls are whose from such only earnings charged and authorizedto add the tax to said tolls collect herebyimposed in therewith, same but no case shall tax be twice charged line of same carried on over the same freight improvements: Provided, now or hereafter That every company incorporated Commonwealth, whose line State, extends into other any and or individual of other every corporation, company, any State, franchises, and priv- holding enjoying property, this'State, shall thereof, whatever virtue the laws ileges make returns of and for the carried over, pay freight of their lines within this through, portion if lines in this as the whole of their were State.” respective is a fact that is referred to in the and which argument,

[It well here noted, the roads of therefore, may, enough some railroad traverse whole companies Pennsylvania of that State. That the case with the railroad great “ Railroad great Pennsylvania Pennsylvania Company (the also of and Erie. Other roads the Philadelphia Central”); short; roads at all. This is very hardly Pennsylvania the case with the Lake Shore Road in what is known in “ the small of the State Pennsylvania Triangle;” part Lake borders on Erie. east terminus of the road Case of the State case.

Statement receives roads from the whole of New converging from York, New New Jersey, England, from its western end roads over the whole diverge again West. So the New York and Erie whose line for Railroad, its main extent York, runs the south line Newof great along from a had which, York, of the soil in New necessity to make a small curvature which miles few brings into So the Pennsylvania. Philadelphia, Wilmington Baltimore, in its chief Delaware, length Maryland terminus northern So other only Pennsylvania. roads.] October, the 25th of officers of 1866, On accounting *3 an under the stated account statute Pennsylvania already the Commonwealth and the between Rail- Reading quoted tax on for the “for quarters road Company, tonnage ending 1865, and March and 31st, 31st, 30th, June 1866.” December named is a created under the laws corporation The company and is in the sole business trans- of Pennsylvania, engaged hire, and no commodities of its for carrying porting freights of its business is An coal part own. important carrying mountains of to a called Port from the Pennsylvania place a distance near of about one hun- Richmond, Philadelphia, miles; dred the whole road A being Pennsylvania. por- to Port tion of the coal Richmond sold there transported far the is intended consumers, to for by larger portion the limits of to and beyond points Pennsylvania, exportation Richmond into vessels at Port destined transferred considerable A coal is also trans- such quantity points. to a the railroad company point Schuyl- ported it is loaded in where be- Canal, barges exported kill was The the State. State: company charged by yond freight transported points to Penn- within For .........$38,361 sylvania, 46,520 . . . exported points that without For

$84,881 latter sum the railroad refused The It company pay. 1864, that the statute of extent that it set up imposed than that both received tax on other delivered freight of the case. Statement was unconstitutional within State of Pennsylvania, in conflict with reasons, other it was void, because, among that States, which ordains the Constitution United commerce with shall have “Congress the several States.” nations, and among foreign in the Common Pleas Suit Dauphin being brought was found County, jury the boundaries of destined beyond exportation originally in a that it con- actually exported, Pennsylvania, in the cars of the defend- tinuous course transportation, Delaware, river or the ants, Schuylkill Canal, points instructed the court and thence in vessels. Being (Pear- should be followed that such verdict finding J.) son, so verdict went. defendants, for the judgment was but a reiteration of the opinion judge charge in other cases on the he had con expressed previously and which to have appeared question, stitutional point the Commonwealth Pennsylvania, been acquiesced error were taken to the writs since, judgments although were never “as he observed cases, they in those argued, decided the then Attor were considered correctly the Honorable W. M. Mere of Pennsylvania, ney-General of error was taken from the a writ However, Supreme dith.” *4 entered on to the ver Court judgment Pennsylvania cause, and it resulted in the dict in the present judgment reversed of Common Pleas the Court being higher tribuual;* the force of the that court admitting argument view, made their that could be that against conceiving “ resolved should be to the a case of doubt favorably simple correction of the if there was act, error, State leaving to the Federal judiciary.” any, force of the the full understand argument opinion

To must refer .to the reader itself. court, opinion of that which it rested the on reversal, were other grounds Among these: from within the carried State to points

That products * State, 286. Pennsylvania See 62 Case

Statement of the case. were within, to or from without without, points points points more than and not discriminated required pay State, carried within the paid other products wholly simply. same exact transportation freight; charge intended as, be, tax was or That this regu imposed which com in other lation of words rule by to be but was a tax to raise merce was money governed; and in the exer made, therefore, the support government, from to tax for cise of an which flowed authority Brown and to the case of v. Maryland,* revenue. Adverting to the there Chief Justice about Marshall, put unconstitutional,— plainly thing restrains a State from article “What taxing any passing for the another, it from one State to of traffic? through purpose of articles from the Or taxing passing State, to another for commercial State itself purposes?”— Court said: Pennsylvania the Supreme “ burdens. These had reference to specific Chief Justice not be out taxed, must and for this singled would subjects intercourse., invidious re- discrimination affecting inviting But did not from other States he foreign powers. taliation that those who illustrations, these use the artificial mean by or under their works, franchise, constructed might because their they without transported goods do conpensation, so or that are not for such bound to share on them purposes, burdens, which is the must equal our citizens price they themselves of these facilities.” for availing pay of her in virtue her unquestioned power That improve her internal affairs, resources own canals, a network had im- railways built had up virtue her channels, and natural right proved her her internal domain legislate eminent her own she had a and the creations sovereignty, affairs and fares for their use, and tolls, to exact charges, a direct this was done by charge tonnage whether *5 * Wheaton, Argument ngainst tax. a tax on who used the franchise was un- corporations

important.

The court stated that it would not rest the case on the "de- batable of State to ground interstate com- merce in the absence of Congressional legislation same subject. case, been here, having brought twice argued. Messrs. James M. and Robert Gowen the’ Lamberion, M ; error Mr. W. other rail- plaintiff Simonton,for J. brief of

road interested companies with the in error in the plaintiff ques- tion invoiced, leave court. beingfiled

I; that the act in is a Assuming question regulation commerce, interstate and therefore interferes with the con- stitutional the first to authority Congress, be con- point is, sidered whether to the domestic, well applicability as to the extra-territorial, commerce of the State excludes it from the of the constitutional operation In other provision. words, is which be commerce, would regulation unconstitutional rendered foreign constitutional by being if confined extendedto domesticcommercealso f must

If be answered the at- affirmatively, framers of the Constitution to tempt secure between the States from State has been unsuc- regulation cessful. The its own domes- simple expedient including tic commerce within its commercial will enable regulations extent, the commerce between regulate, any which the States to be carried on within its terri- happens torial limits. The such price paid prerogative, would, in most cases, The citizens of trifling. Pennsyl- can afford vania well to submit to a commercial for their taxes, benefit, which the millions of tons or from their A State. transported through reg- ulation óf commerce which taxes the vast tonnage which traverse the State. east to great thoroughfares south; west and from north taxes the tonnage of the Erie, of the Lake Pennsylvania, Shore, *6 Freight Tax. of the State tax. and other rail Baltimore, Wilmington, Philadelphia, or from the which roads over transported, through coal, consumers State; which compels foreign tribute of Pennsylvania, pay other mineral products natural either by them transported, privilege having railroads, is not rivers channels, likely or artificial Pennsylvania. to be considered oppressive by people line of railroad whose A State territory single through railroad not hesitate would passes domestic com in favor its own without discriminating would render com if merce, proposed regulations to its The steam continent treasury. merce of a tributary would boat traffic of be subject Mississippi tempting of the several States within for the commercial regulations it is ou. None of the evils whose carried which boundaries invest induced the framers of the Constitution to Congress with the commerce between the States regulating such an would be avoided under of the Cons interpretation The increase of the States and the vast increase titution.* of commerce between them would render the burdens of a hundredfold more State onerous than they regulations were before Constitution was Can it be adopted. sup time, at the a citizen of that, California would present posed duties not transit paying object every through his merchandise which happen transported, Atlantic to Pacific, because the passage merely same were duties domestic imposed upon He within those would that the justly States. duties argue inured to the collected benefit citizens of the States to his them, not benefit. imposed therefore, the Practically, prohibition against regu- of interstate commerce lations would be if nugatory, evaded such could be by extending domestic regulations as to extra-territorial commerce; as well and no interpreta- tion of the Constitution which an such permits evasion can * Federalist, 7, by Hamilton, See The No. Mr. depicting the injurious consequences of permitting regulate'commerce. the several States to Dec. Case of the State the tax.

Argument against a statute unless it can be shown that Indeed, legitimate. as well as commerce between the States regulates be- commerce in the of commerce the States, tween is at an end. argument In enacted that Crandall v. State Nevada* a statute *7 “ there levied tax of $1, should be and collected a capitation railroad, upon every any stage pei’son leaving the business coach, or other vehicle employed engaged of the unanimous for But hire.” transporting passengers as of this court condemned the statute unconstitu judgment A of the court did not think statute a tional. majority of did. But all held commerce, regulation part though the statute unconstitutional and void. The of citizens right of the United States to from of Na pass point point tional unrestricted State em territory, regulations, the statute have asserted. Would been constitu phatically tional if it had also taxed the of within the right passage Can tax, and, State of Nevada? State by taxing, pro of hibit the of the United States, from, citizens into, passage her because she a similar territory, imposes tax through and a similar of within prohibition passage her a State tax ? Can wines in the territory imported hands statute which taxes importers wines, domestic as well as foreign? † as if case, then,

II. the tax Considering imposed by had been the act confined to the trans- expressly into, of from portation freight through, Pennsylvania, such a tax a is the imposition commerce between of of the States? If interstate commerce is not it, it is taxing regulating what would be. In Brown v. easy imagine Maryland, * Wallace, 35; Clarke, see Treasurer of Delaware, 6 State v. Wilmington, and Baltimore Philadelphia, Railroad Company, in the Delaware, 1871, Appeals Errors and A.D. and the opinion Court Bates, C.; Railway Company The Erie v. also The State of New Jersey (2 which, Yroom, in all material respects, identical 531), with that be now the court. fore Austin, Wallace, Low† op State tax. of a to tax when power

Marshall, J., C. speaking refers within its territory, or their property, its own citizens through of a State upon goods passing to the imposition illustration, extreme State, apparently, an or from the the reserved Congress an encroachment upon He says: commerce. regulate

“ found their all persons property If the taxmay States from in their them taxing goods what shall restrain territory, another, from one for the State, pur- part transit through The laws of trade authorize this ? opera- pose re-exportation it. Or what requires restrains State tion, and general it, another, article oneState to taxing any passing through fron\ from ? taxing Or arti- thepurposesof traffic from for itself, to another commercial clespassing cases are all within the These sovereign purposes? the measures taxation, obviously but would derange Congress and affect, materially, purposes *8 was which the power given.” is was

There there assumed the court be- nothing (as low to which warrants the in- quoted, be) language “ ference that burdens” on specific mentioned subjects The Chief were referred to. Justice speaking States, for the to tax all persons claimed property power and he meant assert on their that a territory; State found its limits not tax on within could be levied property on in transit from the State. goods through main The object upon conferring Congress power several States, commerce was to among put end to and vexatious taxes and an the onerous duties with it had been State burdened It does legislation. occurred to the framers seem have of the not Constitution, still the States continue to tax interstate might com- merce, grant notwithstanding Congress; there never has a but been case where va- perhaps yet a tax has law been lidity questioned ground a of its interstate in commerce, being regulation not an has to show been,made that the law was not attempt a but an exercise of the merely the tax. no ease is taxation. The exception, present reasons but no can be derived from advantage repeating which have led such in former cases this court reject reasoning. incident-

Will it be said that the statute in only as affects inasmuch interstate commerce, ally indirectly of is levied, the tax not on the complained goods transported, business, but on companies? transporting even if it were is distinction, substantial —which not This not admitted —does tend to show that the tax is not regu that the trans lation of commerce. On fact the contrary, ren taxed, and not the is itself, portation goods transported, tax ders the the more commerce. It is plainly commerce the' itself that and not the taxed, very subjects on ton with which deals. of a tax imposition every mined in would be a tax com of coal Pennsylvania merce; tax on the of the coal from the consumer, mines to the tax on clearly in coal as that cau be imagined.* What is “commerce?” J., Washington, Corfield : tells us Coryell,† nations,

“Commerce foreign the several among States, can mean more than intercourse with nothing those na- those States, for the tions among trade, purposes .be of the trade what it and thus intercourse must object may, in- which it clude all the means can be on, carried whether by States, free waters of the several navigation by a the States, overland where such through be- passage passage to the commercial comes between necessary intercourse States.” *9 The Erie J.,C. Railway v. The Beasley, Company to the same New effect. He Jersey,‡ speaks says: “If there can be no commerce between the States without the "sothere can be none without goods, transportation goods. be The two must united to constitute interstate commerce. So * Wheaton, Ogden, 9 189. Gibbons v. Court, 4 Washington’s Circuit 379. † Vroom, 2 ‡ vox,, xv. Cfc. Case of the State tax. the elements one of these two certain, then,

it is not that a on duty a tax as must, upon in commerce in the nature of operate things, indissoluble; are As the two commerce, the other. things be it I think may divisible for of taxation? the they purpose to cases rule, laid down as a general universally applicable considered, that under the clause of the Constitution now arising a would to regu- whenever the of a amount commodity taxation inci- lation of an commerce, so will the taxation inseparable The of such dent, object or a concomitant commodity. necessary in its transit merchandise from all to the exactions being protect over as it ele- construction, a rule of as is a necessary we required must a to means to protection mentary, imply because, effect such a without such implication, passage, secured intended to be is defeated.” privilege was intended transportation That the leg- tax, 1864, the act to is as islature, subject words can make A tax is not se per clear as it. upon goods much commerce, a less interstate commerce tax upon upon never become of com- in the may subjects goods, how the merce; but consignor goods can be out of taxed the State consignee therefore without interstate without taxing, regulating it is see. easy In Brown v. it at the bar, that Maryland, argued tax was not article but upon imported, occupa- Marshall, tion But J.: says C. importer. is

“It is to conceal from ourselves that this impossible varying the form without It substance. varying treating pro- if hibition, which were confined to a particular general, mode of forbidden All must doing thing. perceive sale, tax on the sale an article is a tax only on imported itself. is true the State tax the article It occupations tax must those who paid employ generally; individual, or is a on his business. lawyer, physi- cian, mechanic, or the must either more on the article in charge deals, itself is taxed which he or the his thing through person. This has no because constitutional do, pro- hibition extends it. So a tax on the of an occupation importer is dn.like It manner a tax must add importation. price *10 Freight 243 Case Tax.

Argument against the tax. or article, importer the consumer by of the and be by paid would itself on the article in like a direct duty himself manner as because it do, has no be This made (paid?). the Constitution.” prohibited by ivas held a tax a bill In Almy lading v. California,* upon a tax upon exports to be really substantially be which the bill of was to used. lading court acted on what In both these cases this cited, Grier, Cases;† in the with his sense, Passenger J., says ponderous “ we them deal with cannot change have to We things, on vessels a duty their names. Can a State levy by changing citizens, her by and not owned own engaged to ‘a tax on its name from a on ‘duty tonnage’ changing on charge master?’ or an impost imports, calling a great principle or justify owner evasion supercargo, or that a ship cap- a dictum by producing dictionary prove nor a an vessel, impost?” tain is not a supercargo on on tbe a tax either transportation goods That must ultimately while transported themselves being goods “ clear for When is too tbe consumer argumeut. be paid merchandise, of the is laid on the this tax of well- that, for doubt operation there is no room car carrier to the it must from the thing laws, pass known burden, statutory in the ried, and, precise ratio. The consumer must in the market. their enhance price it be on upon whether custom, placed goods pay is, then The result imposi their transportation. it is which, the business of transportation, argued, tion more nor the same effect —neither constitutional, produces of the owner of the business goods, private less — them a direct tax on the would produced goods latter form of taxation would undeniably selves, substantial in the results This identity unconstitutional. of the substantial favor an inference seem to would strongly conclusion, the causes them. producing identity if the is, therefore trans this course reasoning, * Id. 458. Howard, 7 † *11 the tax. can State to State of merchandise in transitu from portation court, before be taxed the form of iaw now by no the affords constitutional consideration under provision the which are whatever to the owner of protection goods of such subjects transportation.”* however, The considers, Court of Supreme Pennsylvania the that the tax for be exacted as compensation may lawfully use of the works domain of constructed under the eminent But, State. The

1. rivers under of were not constructed Pennsylvania the State of eminent tax domain, the by imposed the statute on ton of the’ within every freight transported territorial limits of a steamboat by Pennsylvania, compan}-, cannot be considered as a of compensation privilege using the of works the The State. law alike to all public applies means of whether on the transportation, rivers navigable the State, the lakes of-the passing- or through great West, line of canal If railroad. are laden any at Olean, goods in the State of York, New carried the steamboats, other of a boats to New company, Orleans, be taxed so soon they ton, as the boat crosses line freight Pennsylvania; and thus our rivers be no free commerce of all longer great citizens which it every through passes. The State has with the parted exact tolls for right use of the canals owned railroads canal and

railroad companies Pennsylvania. Philadelphia Railroad and not the State of Reading Company, Pennsyl- vania, has the toll for'the use of its right charge railroads. au

The absence of to exact a intention toll for the use of roads or water-courses when artificial imposed tax is also made manifest controversy, fact that the is not graduated by length transportation. A abut few passes ton of miles the ter- through is taxed as much as a Pennsylvania ton ritory which has three hundred been miles. The transported through freight * J., Beasley, in Brie Railway Company Per C. Jersey, v. New ut supra. Dee. 1872.]

Argument against the tax.. or of the Baltimore, the Philadelphia, Wilmington all of them lines, or of the New York and Erie Shore, Lake as that of is taxed as roads, short heavily very Pennsyl- Penn- the whole vania traverses Railroad, length sylvania. levied can tax on the act

How then transportation, use of arti- be treated compensation question, and what advance deter- ficial towards proper highways, of this case is made mination discussing of a demand use State to toll for the railroads *12 which she canals owns? Once admit that tax on and within or the a State of through transportation territory may it as a toll for the sustained use of by treating highways, is limit to the burdens which thére no and imposed What interstate commerce. on com- proportion the land between States of this is merce Union not car- means of artificial roads on ? where ried ordinary the control of which has roads, or State been retained county Commonwealth, used, the be much the would theory than in the case of railroads and canals con- more plausible structed by companies. this in the decision of court v. Nevada

Would Crandall tax in favor of the of a State to been have passengers if it had been that the from her transit territory argued for the use of the road on which awas compensation tax were travelling? they that statute The

III. freedom interferes and another betweenone persons goods transit of exist under like ours. political necessarily organization must settle Nevada It is of Ch'andall seems case v. this. The declared was a tax there unconstitutional tax true and not of property; persons the passage on the one case as the court is applicable reasoning laid other; the rule down Parham,* and in v. Woodruff is of as “freedom of Nevada spoken securing in Crandall State and between one another.” persons transit goods * Wallace, Case oe the in favor tax. Mr. F. Brewster, Attorney-General Pennsylvania, Carroll and Mr. Lewis Smith, Wain contra:

Before of law raised the plain- considering points error, tiffs in is of words discern from the importance of the act in its ex- the exact of the tax practical working ecution. and the is act to raise revenue,

First. It an additional the col- mode of the tax identical with collection is looks lection other taxes to which Commonwealth all for her revenue. nearly all the The tax is imposed corporations

Second. is each State, and of them proportion charged discrimination between carried, all the tons without any intended State, carried within those those exclusively abroad. the end after days allowed Third. company thirty number tons car- in which to of each report quarter settled, tax so more in which to pay ried, days sixty (cid:127) them, before carried have the goods beyond jurisdiction due becomes or payable, passed abroad, if were intended shipment It is has attached to them. or hen whatever claim no liable for of the corporation non-pay- franchise *13 the tax. ment of “ called a tax, The familiarly Fourth. although tonnage a tax on the results, corporation, actual tax,” is, graded in its it transacts amount of business province the by “ tax” it is and if the term a implies tonnage transporter; the which erroneous, is ton, pounds a go tax on a ton merely convenient make Pennsylvania being up the business done the cor- to measure standard whereby poration. unconstitutional, it must be because it a tax be is such

If and directly prohibited expressly exercise power the United the States. the Constitution Every State by is It a means, of its in favor and legality. presumption which the State of Penn- through one of importance, great oe the State Argument in favor of the tax. seeks raise the funds to the main necessary

sylvania of the administration tenance government State; for such a is the exercise of a Taxation purpose high of a and no far-drawn and unquestioned privilege sovereign, can be allowed to rob her of or dubious passage analogy her as existence which is necessary absolutely right raise revenue ever taxation. It must State—the under our remembered, questions considering arising that within its own complex government, sphere, system States, that of the and each United that of the government, In withiu its States, power sovereign. exercising acts are its own And only by sphere, governed pleasure. relation of the the National view of the States to this gov is stated with and force great ernment preciseness case where recent Day* court in the Collector to tax under its law, Federal sought levying government of a tax, income of a State. salary Speak judge general “ condition States separate independent ing Constitution, complex system, recognized our “ is so which,” court, existence and the say indispens them itself would without able, that general government this court in the nations,” ease family disappear n cited say: “ if reasonable, It would seem to followas a not a necessary that the means and consequence, instrumentalities employed of their carrying operations governments, pre- existence, their serving fulfilling high responsible to them in the duties Constitution, should be assigned left should not be liable free and to be unimpaired; crippled, much defeated, less another taxing government, no limits but the will of the power acknowledges legis- the tax, and more body imposing lative those especially means instrumentalities creation of their sovereign Without this reserved and the rights. exerciseof it, no one of we risk the States saying under nothing *14 Constitution could guaranteed form government long its existence.” preserve

* 11 Wallace, 113. 248 in favor of the tax.

Is THEN QUESTION THE STATUTE IN SUCH A REGULATION OF IS IN VIOLATION OF THE CONSTITUTION COSIMERCE AS OF THE States? United “ it is a 1. commerce the ,” Pennsyl- If to, vania has under clause to makesuch right, regu- referred lation, same by Congress having legislation. forbidden The clause which vests in Congress power regulate commerce does not, ipsofaeio, take from the States the right to also commerce, that the provided regulate regulations latter do not come in conflict with those of the former. there be it is conceded conflict, If State law any at in the case once But no such falls. arises. present question has not law commerce be Congress passed any regulating tween the There can,,therefore, States. be no conflict with enactment, and the superior only is, question remaining whether the commerce vested in power regulating Congress It is submitted that there is no exclusive. decision court which can be said to so decide. Analogies may or the dicta drawn, individual but there is cited, judges no decision which settles On the judicial other question. wherever the has hand, issue been it has been presented avoided, declarations from the bench abound all the intention of so On the reports, disclaiming deciding. hand, other of a opinions taken majority judges, their bear towards the decision, doctrine, that until fit sees to exercise the vested in it, the Congress have far States so as the same in their arrive nature, are local do not to a National rule.* true that the view of the

It is favorable to exclusiveness sustained Congressional court in cases of this of Brown decision v. Maryland, v. and. the decision of a Ogden,† divided court in Gibbons the case of But Gibbonsv. Passenger Ogden Cases.‡ * Crowninshield, Wheaton, 122, 192; v. Sturges 4 Moore, Houston v. Cases, Howard, 299; 578; 1; Cooley 5 Wardens, 5 Id. License v. Port 12 Id. Nevada, 35, Wallace, 6 and other cases. Crandall Wheaton, Howard, 226. ‡ † *15 Freight 249 Case the State Tax.

Argument in favor the tax. decided on the that the State of an exclusive ground grant to the waters of a river was in conflict navigable that branch of commerce as to which has made Congress direct to it must legislation, being repugnant give way. Had court been of the was un opinion grant constitutional, because it was an of a State merely attempt commerce, the decision would have been based regulate on that but the court avoided ground; expressly giving any such an So far as the are con Cases opinion. Passenger decision cerned, of the court was such as to greatly weaken the even had been based opinion, exclusively of the exclusiveness of the ground power Congress. be, However all this the later eases of v. Philad Gilman of Hinson elphia,* Lott,† Nevada, v. Crandall v. more than balance whatever inclination the decisions previous have had. might Indeed, City Gilman Philadelphia emphatic we for, contend if mean- recognition principle of the decision is stated Clifford, in a dis-

ing rightly J., sent which he made from He it. says:

“The doctrine advanced, as I precise understand the opinion, is that has not act Congress passed any regulating naviga- river, tion of the- and that as there inasmuch is no Federal tho law of the subject, State legislature the erection of law, a valid authorizing even if bridge be an obstruction to because bridge navigation, law is conflict with act of any to the Congress giving protection otherwise paramount right navigation.”

Is there in the idea State can anything regulate so, interstate omits to do which is Congress .if inconsistent with the intent of the clause inserted Constitution com- Congress power giving regulate see merce? We fail to such At the time any thing. of the Constitution the commerce of adoption country was burdened imposition imposts exposts the several States, of commerce im- regulations

* Wallace, 8 Id. 150. † oe the in favor of the tax. was vested them. The posed by so that a law at time it could regulat- Congress, pass so so as all the burdens ing commerce, to relieve it from vexatious under the That Confederation. given *16 to to see and should exercise, fit, should it Congress Johnson, J., occasion as exigencies If, says, require. in his in be which will doubtless opinion Gibbonsv. Ogden, relied on iu “all the laws on commerce drop- reply, bearing lifeless from the ped statute-book,” necessarily it was because the to had ceased commerce power regulating in the each States, because State knew that if it persisted in its would impositions Congress power, exercise cancel its laws thus of one by paramount. passage moment that the direful drawn' picture, by plaintiffs error, should be exer- could painted experience, Congress cise all such laws into utter its'power sweep nullity.

2. The tax is not such a as to be'in- commerce regulation of cluded in the to power that to given Congress, supposing power exclusive.

In order that we discover whether the act now alleged to be unconstitutional is a it is “regulation commerce,” to see what is necessary “commerce,” what amounts to “ “ regulation.” Commerce,” Marshall, says C. J., Gibbons “is Ogden, traffic; but undoubtedly it is some more. It is thing intercourse. It describes the commercial intercourse between nations and of nations in parts all its branches, and is regulated by prescribed rules carrying And intercourse.” he “It again says: to power that is, to regulate, prescribe the rules which commerce is to be This governed.” with the corresponds derivation “ of the word regiilate,” furnishes us with the to key “ what is meant a commerce. Hegula, to Regulate, adjust as, rule: to regulate weights rule — and measures; to the assize regulate bread; to regulate “ trade.”* We can, therefore, the term paraphrase

* Webster. of the tax. favor ” “ words, prescribe rules which the intercourse of with one nation govern another.” the tax in Can be considered in rule to intercourse of the way govern Penn- people those of other Does it make a rule sylvania States ? of a out ton coal govern shipment passing does ton of not, State ? It coal is clearly- shipped just as without either the interference freely, knowledge there no such law in It is force. though not until has months after the ton been shipped State knows until fact: is not months later that the tax is How then payable can be a company. rule to the intercourse ? And the same govern reasoning into the State from abroad. applies goods brought They delivered broken consignees, packages and the sold before the railroad is asked to goods company the tax in There which con- then, pay question. nothing, *17 the nects the tax with the or There intercourse. can goods be no as a there is such rule where which it thing nothing It is essential to a that it have affects. regulation something But to here it neither the carrier, nor regulates regulate. nor nor shipper, purchaser, goods transported. it a How then is of it commerce, when does not regulation affect that to make of commerce ? up It any things go of commerce into the only by meaning sublimating then “intercourse,” naked word and that this maintaining with “intei-course” by profits making interferes less, from consequently him a transporter removing incentive business, of the this tax can be portion meau construed to a But if the commerce. regulation this rule taken court is such, interpretation by any- is a commerce which tends to diminish thing regulation levied, then there is no tax a transportation, profits a which is within such construction, State therefore for all taxation interferes more or less invalid, with produc- tion If State cannot tax the consumption. receipts to the number of proportion transportation company and on which has it, tons carried been then paid, the tax. favor the dividends are declared, cannot tax the dividends same of these and derived portion very receipts, sent abroad. source, viz., intended to be received from traffic see difficult to if it is Indeed, error be plaiutiffs right, which no tax what is left for the tax. It can State to lay commerce; will not less more or less pre- more or affect there can vent without consumption; consumption no commerce. will

There at must, be some therefore, point concur, that the of a a tax impose affect the transporter, profits diminishing valid; a revenue. otherwise the States would be left without Now where does the power Congress cease? and that of a. tax the State to impose begin, afford a solution to decisions made this court heretofore of a com- definition question. regulation Taking to mean a rule to which we have we find it merce given, the State intercourse. If then act be passed by govern any affects the to a which either rule, directly goods, amounting or the or consignor consignee, of com- it can be considered sale, or their goods the business of which taxes act of State merce. But any their citizens, or franchise of of its any corporation, far as to check commerce so interferes with only profits, amount to a rule does not or diminish profits, consumption exercise of the and is a intercourse, legitimate govern never surrendered of taxation rightful standard, as a this, then, the Federal Taking government. decisions of courts which to the various around classify *18 the conclusions let us examine on this subject, bearing on relied Maryland, plaintiffs In Brown v. arrived at. on every license was foreign in a error, by Maryland imposed a sell could break any foreign he package importer, before the sale of affected a rule which This was directly goods. to it sale was necessary took before place goods, was thus the license the cost of rule, comply This in commerce. to foreign made a engaging prerequisite a license a unconstitutional, because, making held was Dec. oe the State

Argument in favor of the tax. was rule sale, to it intercourse. It a prerequisite clogged of commerce which con that affected directly portion sisted in Had the State of Maryland selling imported goods. the end of to a at merchant, every every year, pay required his business, he derived from on the amount tax profits were what of those derived from profits part irrespective can trade, came from it be trade and what internal foreign in its decision leads to the inference that contended anything held have been On such a tax would unconstitutional? have we a decision this court Nathan v. contrary, idea of the uncon Louisiana* opposite State directly as of such a tax In that case the stated. stitutionality on businessof brokers, levied a tax foreign exchange and it was held constitutional. ever

None the decisions of this court have so far gone taxation, to interfere with State cases in which except a in such form as to be a the tax was rule to primarily a tax in its effects. only secondary govern test, case of Gibbons ceases Applying Ogden of the States this tax. That bear right impose against reason was but direct nothing which, on steamboat the course of of-its every operating River. established the Hudson It rule commerce, plied the States, between intercourse by giving govern to the that intercourse exclusively grantees v. California, also in cited Almy So us. of New York. of a California on stamp was imposition duty That or silver As the bill exported. bill of lading gold every essential an such a part every was consignment, of lading on to a direct tax silver, gold was tax equivalent before the was could be necessary goods payment This was the of commerce. establishment commodities come particular articles. It shipment rule to govern effect: was an secondary primarily a tax only It intercourse. had commercial usual imposition bona law, viz., im- every general of nearly features fide * Howard, *19 Freight 254 Tax. Case of State in favor of the tax. out revenue. It of singled of duties for the raising position the tax on and by levying the articles principally exported, commerce, charg- them the intention to clog showed de- however, was, It on it cost of State expenses. ing it on the court, this cided unconstitutional ground was a on exports. duty is a us, also cited Nevada, v. The State Crandall of then in this test. The law dispute illustration

striking capita on at a rate per levied tax companies, it. on State leaving passing through every passenger to the carrier In as the State looked after the case, pas had its limits and did not passed beyond senger directly clog a rule to intercourse, the govern commerce by establishing hold ivas not it such court of com prepared regulation as was merce contemplated by Constitution, only law decided adversely principles distinct entirely all connection with commerce. being a law v. Port Wardens* of the State Steamship In Co. vessel of New Or Louisiana every entering port taxing dollars, five without leans ser preference regard any was held officers unconstitu pilots, vice by the tax was the same as The effect of before tional. though, enter the she was vessel could compelled port, pay for the This was. a rule five dollars privilege entering. fell intercourse, course, within the clause and, to govern to. referred same Cases establish the

The Passenger rule. were They that the based law.in ground directly question estab- a rule to intercourse. lished govern next at cases in which the laws of the Looking various have been court, will be upheld States found that them, complained- although many regulations were as valid because upheld did rule intercourse, to a amount govern affected merely while their secondarily, intercourse result was primary of a vested in exercise power undeniably State. And

* Wallace, *20 in favor of the tax. Argument The Blackbird first case of Willsonv. these is the among Chief in which 1829, as GreekMarsh decided as Co.,* early in written the Justice opinion Marshall had already (who the unani Brown delivered v. and Maryland v. Gibbons Ogden) was mous In that case bridge of the court. judgment all navi cut off erected stream, over a entirely navigable of a exercise a constitutional Yet it was held to be gation. Al Delaware. never of surrendered the State power with inter it is interfered though undisputed bridge a local intended as course, improve it was yet primarily State, its ment, and was an exercise of the of the right effect of its interference was with commerce the secondary not a rule to erection, the act was lawful. It was govern decided Miln,† New York So also in v. City intercourse. of cannot be doubted case, later. In while it eight years that the New York imposition penalties the number vessels to captains passengers, report failing it not a rule to as was yet regulation exercise in but was the effect, intercourse its govern primary and a in the first of the place, reg police power was held of commerce in second ulation place .only, In v. constitutional. Groves Slaughter,‡ an act importation

constitutionality forbidding was considered and slaves from State into Mississippi measure, as a local act It was intended police sustained. commerce still it was and while it affect interstate might to the State. But an exercise of a conceded right primarily decided Wardens,§ is the ease of Board Cooleyv. stronger The law of every in 1851. Pennsylvania, imposing upon vessel Philadelphia, entering port neglects take a a forfeit of one-half refuses to pilot, pilotage, go of Disabled was held Pilots, Relief Society “ includes The commerce constitutional. power be a uni various some of which there should subjects, others different rules in different locali rule, form and upon former, in in the ties. exclusively Congress * Peters, § Howard, 12 11 Id. 104. 15 Id. 449. 299. † ‡ oe of the tax. favor is a latter.” The regulate pilots not so local law was commerce, but as the primarily exer to be an intended, faith, its good operations, effect secondary undoubted cise of an right and the decision is did not make it ap illegal, decided over sixteen Nevada, years in Crandall v. proved de Philadelphia, still more decided But Gilman later. referred.* which we have 1865, cided in already over a settled the of State to erect This bridge even if it does interfere river, navigation, navigable has not *21 subject, Congress legislated provided a does amount to a rule to act of State that if the govern even if it does inter enacted, it be intercourse, lawfully may The statement of the distinction is fere with commerce. in words of who J., drawn the delivered the Swayne, clearly He says: opinion. exercise concurrent in all

“The States cases but may power is in the lodged exclusively 1st. Fed- power three: Where it is 2d. Where United given States eral Constitution. Where, 3d. from the to the States. nature and and prohibited must be it exercised necessax-ily power, subjects Federal exclusively.” government here in does not fall within

The either It is no to distinct substantive objection these exceptions. be exercised the same that they may subject powers boundai'ies. In some their instances respective within their becomes.blended, in some the action of action Nation; action of the in displaces others governments is void, of the State because it seeks action to reach ob- limits of State authority. beyond jects between interference distinction with commerce of commerce clearly court i-ecognized by regulation case case, and the furnishes an answer to the in com- the States interfere with inter- allowing plaint lead to evils in would coiximerce tx-affic. state various recent decisions of the we court, From think

* Supra, p. 249. op favor in tax. be that, then that considered whatever have may cases, been the tenor of the earlier it is now settled that there are forms of which affect commerce many regulations which it is within the to make, States not ex- powers the cases of pilots, quarantine cluding bridges, police all of which been have measures, always being recognized as well as vested in the States That there also Congress. States the to the laws which in ex- pass belongs reserved States, ercise of the even if rights provided regulations nature and does not amount local national rule, one affects the whole uniformly country. “ the tax'now under discussion Does institute a regulation “ character,” of commerce of a national or one which has a uniform over the whole country?” operation Surely between the Railroad and the Common dealing Reading wealth of as to the taxes on its Pennsylvania business coal from mines to Port Richmond, Phila shipping is not national But a distinct delphia, regulation. argu ment of the rendered proposition fortunately unnecessary Crandall was decision v. State Nevada. It there held that the tax under not such one as to dispute come conflict with the constitutional Now the *22 provision. in tax that case was similar in its to the one operation at before the with the the in court, that tax present exception the Nevada case bore much more on the directly person than this does the one on transported carried, and goods also a discrimination was a of particular class traffic. against the Tinlike Nevada this is uniform tax, in its on operation all classes and makes no discrimination. The Nevada tax in the tax Pennsylvania curious present resemblance, differ in that the one former is in only much stronger the its constitutional against than bearing provision this court latter. Yet admitted in that that as the tax case, rule not a uniform in whole national country, character, it was not in its conflict with the constitutional failed to restriction, the sub Congress having legislate upon has been act There no of since ject. Congress passed 17 xv. VOL. Freight.Tax.

258 Case of the State favor of the tax. Argument in in then, the tax 1867 If, bears imposed subject. the one now before can unconstitutional, was not how so far former, is a so, court be when it counterpart concerned? relations to transportation taxation exercise in is an law question is in its Constitution, opera- under the reservedto the equal Stales no discrimination tion, character, bond in its making fide non-residents,and is everycorporation levied franchise of its business. proportion the franchises of its own cor-

A State can tax on levy has been decided. The State This repeatedly porations. coutends that under the undeniable Pennsylvania of her citizens she has seen fit to the franchises levy The tax tax. payable company proportion Now, carried. that this is a tax amount of on freight when it is remem- the franchise apparent, company of rail- that receipts great majority bered are derived from In the case roads Pennsylvania freight. the now Railroad Company, error, plaintiff Reading business, is almost their business exclusively of their franchises to themselves can and the value be graded carried, the amount of for almost all their exactly by freight from are derived Can receipts freight. successfully could Commonwealth not have contended charged of this at a tax oil income rate she ? company any pleased income is derived Yet the exclusively freight. Why, can she not tax the amount of car- then, company by freight at so much as well as ried, at so much per pounds, on each of income received from dollar carrying freight. one dollar from If this company got every pounds carried, could not tax of two cents levy there income, before should be dollar divi- every she can she not measure the could, If business why dend? the amount of company by freight, *23 a tax on the amount franchise of the of receipts, lay of two cents on each 2000 pounds? company effect of the tax is make its The question practical Dee. oe the in favor of the tax. different the

amount with'the amount vary freight companies, grades proportion transporting value in accordance with the each shall to the State pay State, to each have been which the franchises granted by covered tax. to the corporation period during taxation, exercise of Not proper only has been it is in the form which commended but especially taxation, this court. according came before done amount business by corporation, a tax levied That was v. Coile.* Society Savings court a cer bank, of a its hands on deposits saving gross contended that the States securities tain It was United day. it could not be thus as were taxable, held exempt held such a tax taxation. The court from State and sustained The court franchise of the it. corporation, said: in different States. adopted

“Different modes of taxation to be required in some instances annually paid Fixed sums are and in others a prescribed per- the treasury into owned or held stock, assets, or is levied on the property, centage the sum to be required while others paid corporation, in some mode the amount ascertained indefinite, is left to be within a defined shall transact corporation business latter modeis bettercalcidated that the shows Experience period. to contribute to the justice among corporationsrequired to effect devised, lohichhas been than other tendency burdens public the value contributionto the required privileges is to graduate their exercise.” and to the extent granted, is as much the business of The business as is that of receiving deposits railroad companies, then, a tax on the If, bank. total business savings is a tax on the franchise, at a certain day, amount of deposits total amount of a like carried, tax on the is not a why And the court held not that such only tax on franchise? as the commended it most equita- justly legal, devised. could ble

* Massachusetts, Ib. 623. Provident Institution v. 608; and see Wallace, *24 Freight of the State Tax. of in favor the tax. favor of the State is found in

aBut stronger argument levied her to raise revenue tax, a fact that it is bond fide which owe manner from the their corporations in an equitable tax is levied ton existence to her dominion. The every upon a citizen of whether be carried, shipped goods other bur- of New State. The Jersey, any Pennsylvania, fall on all classes of and do business, dens heavily equally citizens a more than not is charge upon foreign penny be a our own. It that if tax is as upon charged illegal a citizen another levied it cannot be made against it a citizen of Pennsylvania. But levying legal is found the cause fallacy argument confounding is not it a tax law and It is because that act can effect. is it of. It amounts to a because complained regulation it does commerce; aiid when we show that amount not a but is bond tax we commerce, law, show a regulation fide is It fallacious to start with the it is constitutional. that to certain is as The fact it illegal parties. premise is evidence of faith no discrimination is good there It it from the State. removes un- any suspicion part here, come not as makes fairness, injured plaintiff but a protection, corporation seeking seeking parties her which must share tax be borne paying escape effect of the so far tax, fellow-corporations. concerned, is well stated in the opinion as traffic Court of It says: Pennsylvania. Supreme “ it matter that doesnot whenceor whither is evident It these travel, there be no discrimination so that to forbid or tons exit from the entrance into or State; their being burden benefit and the on privilege works on tax end, this bears on all. equally Nor can it constructed difference,that the is allowed to company add make on tolls its franchises charges on itself. freight who both the enjoys the owner It is privilege franchise affords, this valuable whose toll facility could State to the same extent if the works increased were those who use the road, It falls hands. in her because it is a because of in- it is subject Case of Argument in favor of the tax.

ternal he is bound which to contribute. There regulation, in fact substantial distinction between an act authority, one as a burden commerce and simply operates can of a attempts to it. No one doubt the *25 to tax coal, lumber, her own iron, and other grain, products her and of those soil, mines and the and persons occupations in their or their and engaged production yet transportation, them, these those burdens fall on who consume eventually whether or such live in out of the State. taxa- clearly Yet they is The in tion com- no commerce. regulation laying mon tax on all such articles is not bound and cannot be pre- sumed where will be to know nor to consumed, inquire in the destination of those who traffic or If them. transport do she not discriminate between that which out or comes goes in within, and that which remains be cannot said that she in sense commerce with other attempts States, or to or In duty exports. where impose imports principle, no discrimination, there no there is difference between taxa or on a whether in measured he ton transporter, gross by carries, farmer, a tax on a manufacturer, miner, broker, merchant, or the measured business he does. Yet are burdens reach the consumer impositions he lives. The which insists wherever fallacy argument shall not be shared burdens internal transportation it is an or import the distant on the consumer, ground in the fact that is seen export duty, of the be to discrim- State, out would articles going exempt the domestic consumer. and against inate favor foreign Delaware, Bichmond, carried from’the mines Coal to. tax, but if in- be liable to the of, is conceded to there disposed State, it is said without the sent forward to be places tended to on our own but to a tax liable; what is this impose to be bear? Penn- are not to those citizens, beyond entitled to its Union, citizens same sylvanians discrimination.” such against equal protection Camden, A resident of oppo- weighty. argument to him from the can have coal shipped site Philadelphia, A resident of be Philadelphia cannot taxed. mines, that if the con- it would follow tax. Hence must pay in favor of the tax. correct, structiou contended for error be plaintiffs has chartered the citizens whose State Philadelphia, involved whose is to a extent Railroad, Reading capital large mines, in whose authorities its its it, property, protect own franchise, to it its could underbid in their grant a citizen of he was a market New because Jersey, merely of that which has citizen whatever to do nothing continuance, existence, of either the corpora safety coal, tion or property. Pennsylvania Pennsylvania mines, transported by could Pennsylvania company, in Camden than in The con cheaper bought Pennsylvania. stitution never intended such a discrimination a State its own In citizens. Savannah,* Padelford court said:

“ It is not said Brownv. that tho Maryland, State must dis- criminate and not him when she foreigner, favor *26 her own Now, object taxes citizens. what was the of the pro- word, In a hibition? was its in a object put better foreigners condition than natives? knowWe that tho was not to object citizens another State put better condition.” This has had the attention of this point court already v. A tax was there levied on the gross Parham.† Woodruff sales at auction of auctioneers in Mobile, It Alabama. that a amount of the sales were proved large packages, which came from unbroken, It was contended Georgia. that a tax could not levied Alabama on these consign The court the tax, ments. upheld showed that clearly it was never intended the constitution to discriminate a citizen of a State favor of citizens of against other J., Miller, States. says:

“ Tho ease of Brown v. as we have Maryland,, said, already arose out of of that taxing byway statute discrimina- tion, sold', who importers wholesale, foreign goods.” the view of

But court of discrimination subject is more in Hinson Lott. yet decidedly stated In that case

* Georgia, 14 Wallace, 438. †

Argument in favor of the tax. levied a tax of cents on each Georgia fifty gallon whisky into the State from a sister State for brought sale and sold in the She, cask. original also, same act, levied like tax of cents on fifty every manufac- gallon whisky tured and sold in the State. The first she collected as a tax, the latter as a When license. the section the tax imposing came before imported liquors court, Miller, J., said:

“As the act institutes no legislation discriminates States, of sister against products but merely them subjects to the same rate taxation which similar articles that are pay manufactured within the State, wo do not see in it an attempt commerce, but an regulate appropriate exer- legitimate cise of the taxing power State.”

So, in the also, As the present case. tax does not dis- criminate citizens of other but States, merely charges it is not an alike, attempt commerce, but is an exercise of the State. taxing

And it is a fact that all note, worthy research of the learned counsel for the in error plaintiff has failed to ease in discover which this court has single overturned a which is bond law, Státe in its provisions, which fide contains no covert attempt regulate commerce, enacts, without tax alike for discrimination, residents or non-resi- dents, to the business carried on proportion under the of the State which protection imposes tax.

If in error proposition plaintiff:' correct, outside the State points be free shipped goods *27 because the tax then taxation, would be to com- regulate merce, cannot the citizens of why to Pennsylvania object tax on their ground free- paying any goods, by the non-resident and the resident, there is an ing charging the discrimination resident? All are citizens unjust entitled to the same of one common Union, position the United then, the Constitution States. should by Why, two cents when citizen Pennsylvanian charged «the Does not the State, of New such a Jersey exempt? discrimination, the resident regulate putting op the State in favor of the tax. at and has he not a like to claim pro- disadvantage, taxation, tection defence if would bank- ? Such a to good, her of all her revenue. Commonwealth, rupt by depriving as 4. This is imposed compensationfor use works created her and in exercise authority, of artificial her eminentdomain. right of denied that

It cannot be the Commonwealth Pennsyl allow the vania, fit, had she seen could have refused to Railroad to be built. It owes its existence entirely Reading her of interstate traffic could to No consideration pleasure. have availed so far as to her to authorize eompel anything erection. And she still Rail its destroy Reading franchises, and forfeit its unless restrained road, There is in the the corporation. nothing shape rights vested States courts which could an United authority restrain her from, to-morrow, a moment tearing up every If, then, between Philadelphia. rail Reading power commerce vested is not such a Congress, regulate road, compel power building prevent destruction when how can it be that fit, se.es commérce is such as to the power prevent road ? If she can parties using charging she can create, refuse if can she tax for destroy, why A distinction between a tax the existence? and a regula has been tion of commerce this frequently recognized by court.* thus stated

This view is ably opinion Supreme Court of.Pennsylvania: the most reserved State and one important

“Among rights, before us, connected with the is that of directly eminent domain. This undoubted has been exercised in the im- streams, and in and establish- navigable building provement over in the turn- them, roads, ferries construction of ing canals, railroads; and has been repeatedly recognized pikes, decisions. Under invaluable authoritative * Cases, Howard, 402, McLean, J.; 479, J.; Passenger Taney, C. Veazie Howard, Moor, 14 *28 Freight Dee. Case Tax. the tax. favor of have canals, have network of

States built a up railways natural channels the commerce improved through like whole Union is the life-blood coursing, throughout This was not done under author- natural system. any supposed interstate or to aid the execution to regulate ity States; of the Federal over commerce between power under State to was done the unquestioned improve power Yet, internal resources, and to her her own affairs. one to does doubt the and beneficial any impulse grand given of State And. interstate commerce this exercise power? doubt that the State to who can has a compensation right her means she conferred and the benefit has expenditure her under oh all who use works ? were built herself or They tolls, franchises, her and the to exact and fares right charges, her use, to con- for their is a necessary consequence power form her does it make difference what struct them. Nor any direct on the takes —whether that of a compensation chai’ge road, or that who of a tax using corporations tonnage use her franchises—her to exact compensation right who works. To this is to her those use her gainsay deny right her her internal domain, upon eminent power legislate If theso works of her own sovei’eignty. affairs and creations hands, once of them in her own what were, were, pro- as some forbid her increase in the would vision Federal Constitution over her revenue an increase charge franchises, her them ? When the hands creatures exercising franchises, her instrument forbids what clause any the tax to be added to the tolls and authorize pre-existing To exhaust her over once, not to power legislate charges? or but to at all is to assert tolls subject charges, legislate it be toll what is this but tax, Whether called a £>r her power. ? The increase she can demand charge rightfully demand toll or all articles charge upon transported, right is derived from her and the or fares passage, grant, extent her It determine their discretion. is a depends .to of which she cannot be and of which she is tho deprived, unless, should so unreason- only judge, perhaps, exercised, to afford evidence of a oppressively design, able fraudulent use of the to interdict affect ruinously power, ’by en- because her commerce of other States. To citizens say, mer- market, .in for an extraterritorial because gage mining *29 of the tax. favor State, into chandise over these out of or works may pass or merchandise that to exact tolls and for the minerals charges of those them, over or to franchises engaged tax the transported commerce, in the is to confound all work, is just regulation of a State. distinctions, and sacred right the most destroy over these Her revenue transportation from power levy works be seen in her the works themselves. over may power revenue, can If denied who were her way compensation by her into her to suffer to fall decay own works dispute power contract, to ruin; or, repeal when unfettered a charter under were built? Interstate commerce they charters Then, on could control the act? suffer, but what might on these instrumental- what is a tax levy it she principle canno.t ities, because carried products for privileges granted, without, for or without are points points destined or destination which is carriage gives within the State? It them tax, It is levied on because toll, or charge. in, come but because have the out or go products priv- transportation.’’ and the benefit of ilege to it in anticipa To this plaintiffs, referring argument the rivers are tion, “that of Pennsylvania not con reply,* eminent domain,” structed the State and that a on ton within tax is the terri every transported imposed steamboat. every torial limits Pennsylvania by we that of the rivers in To this rejoin, Pennsylvania of a small part the possible exception Alleghany) (with artificial are, for purpose transportation, highways. are all The of them Susquehanna, Schuylkill, Lehigh, reason of works created artificial at only navigable great and that the evident intention of the as act, as well expense, all show that it is on only companies workings, practical that the is to be works, artificial charge made. owning clear act too on for subject argument. words of the “officers railroad read, every They company, canal and slack-water company, company, Bteamboat naviga- other and all now or companies tion hereafter company, whose in this business works doing * Supra, p. Case of Reply. indi- whether such transported, company shall receive viduals, whether such compensa- company shall tion toll, transportation, toll seen that it be,” receive &c. It will thus be shall only, works that the tax is only companies charged. having if that, It is for the Reply. State of argued Pennsylvania of interstate regulation ; it is not such a can make and alone Congress until has Congress legislated subject, legislation *30 valid.

"When we cousider the circumstances which induced the of the United States to confer people upon Congress to commerce the several power regulate States, among the evils that existed and were avoided, intended to be words of the used in plain the Constitution import itself, is hard to maintain. argument . "What have benefit could been from expected investing with the to interstate Congress power if the States were retain the themselves to exer power —the cise of so vexatious? It could not have proved had. been that supposed would be uniformity system pro duced a new element of If the by discord. introducing reg thirteen ulations established distinct were legislatures found to inconvenient and the interference oppressive, of another would seem to have been a most un legislature of fortunate relief. The is not plan obviated difficulty to the of the acts when referring supremacy Congress enacted. Admit that constitutionally regulation must fall it comes when in conflict with a Federal it cannot that was yet ex supposed regulation, Congress to of commercial adopt system pected would anticipate preclude exercise of possible every on the subjéet. in his power J., Johnson, concurring in Gibbonsv. opinion Ogden,* says: “ will, history therefore, times sustain the opinion.

* Wheaton, Case of the State Reply. commerce, if to be com- that the over intended grant mensurate with evils remedying purpose existing these with the evils, could be commensurate only a very States over the And this opinion supported subject. the whole remarkable evidence of the general understanding There is not State American was made. when people grant exist a not, time, variety there did at that Union which much which it is too to commercial concerning regulations, was these that whole covered by regulations suppose ground under the authority assumed actual immediately legislation this sub- the Union. But where was the statute existing it that or what State was ject a State execute? attempted consent these statutes? common By thought repeal necessary these laws statute-books for want lifeless from their dropped had relinquished been restraining power Congress.” to, is true the case referred the decision of

It that, just law was court rested New ground exclusive York, which and Fulton the gave Livingston York, waters was of the State New navigate in conflict with the laws of the States United providing trade; vessels to was all that carry coasting extract, to decide. But necessary following *31 the whom C. the Marshall, J., opinion opinion by was court concurrent the delivered, shows that the power States to commerce no means was regulate recognized:

“It has been for the that, contended the counsel appellant, as the word over ‘to nature full power in its implies regulate’ the to be the action of it excludes thing necessarily regulated, all others that on the same would the same operation perform result, That is for the entire apply- thing. designed were, to those as to which as well those ing parts remain as they which whole, which are It uniform is as altered. produces much disturbed and the what regulating deranged by.changing has to it introduced, oper- have as that power designs is court is ated. There force in and the not great argument, satisfied that it has been refuted.” eminent that

And it is said same again, judge, exercises the each “When (State government Federal) the State Reply. is the other. taxation, neither exercising power power to commerce with But when regulate foreign proceeds is nations, several it States, exercising very among that is and is Congress, doing very power thing granted then, to do. is no is authorized There Congress analogy, of taxation and the power between power regulating commerce.” Mr. Justice said in v. The Boston,*

So Grier Norris City of (one Passenger Cases), has intercourse for- commerce and

“Congress regulated and States, nations between the several by willing eign free; is not the discretion of each shall therefore left to and.it Union, in the either to refuse to right passage persons her or to exact a territory, or property through duty permis- to exercise sion it.” idea that both

The Congress governments and exercise to interstate regulate may possess is as commerce anomalous that of the to direct the power movement of an in several commanders being army lodged the same at time. to

The power several States regulate among the same is clause in the same given Congress which the words commerce with for- regulate nations is the exclu- given; any argument eign of this in the one case must siveness equally appli- other. It impossible cable distinction. suggest any each case made in the same grant language the same who under circumstances. Yet would now con- the State of can Pennsylvania tend its com- with Great Britain? merce examine various cases

It in which proposed the extent over jurisdiction Congress foreign has been interstate discussed judges Court of United There been Supreme States. has *32 of conflict on In the opinion subject. McLean, of opinion Smith v. in will be a re- J., found (Passenger Case), Turner† * Howard, Ib., 7 464. 393. † op 270

Reply. this and- on view the decisions of previous opinions point. exclusive The learned asserts most emphatically judge the same effect is of To ness of the jurisdiction Congress. in same 410. In the J., case, of p. "Wayne, opinion a statement of the course his of opinion, Judge Wayne gives case of City under which the The New circumstances York was decided. On the whether Miln,* v. question, interstate com to or foreign Congress under all circumstances exclusive, merce in all cases and be however these stated opinions, may safely conflicting can found decisions of this reported nothing as to the raise a doubt tribuual unconstitutionality of the State to interfere governments attempt part with between the the free several States, of exchange, of commerce, articles that can made where subjects such conflict established regulations exchange or police purposes. sanitary

The distinction who delivered judge suggested by The court, Cooley Board majority opinion .the that “whatever Wardens,† subjects national, their nature or admit one uniform only system be said na to be of such a may regulation, justly plan exclusive if as to require ap ture legislation Congress,” would seem to conclude case pi’esent ques plied tion. The right passage persons goods through, is one Union, into several States of na from, or a fit for national tional especially subject importance, been left it has free and regulated being regulations, the distinction referred is to untrammelled. Whether established, well be authoritatively be considered have commanded assent of the doubted. It appears case in which announced, the court in the it was majority in favor of the led to a decision of our validity and to have laws, were admitted pilot although Pennsylvania in the of commerce. But case of Steam be regulations the other side seek v. Port ship (which Company Wardens‡ * Howard, Wallace, 311. 6 81. Peters, † ‡ *33 Freight Case of the State Tax. 271

Opinion of the court. evade, a decision which was in Crandall v. approved find it Nevada, and Hinson on which we Lott,* they rely), decided that

“A statute of a State that the masters and wardens enacting receive, of a within in it should be entitled to demand and port fees, addition to other the sum of five whether called dollars, out to service or vessel not, perform any every arriving within the meaning of commerce port, is unconstitu- Constitution, also a and tonnage, and duty void;” tional and seems decision is based

and the on which this reasoning have inconsistent with the States any quite theory so interstate except concurrent regulate or other far as it affected quarantine may incidentally like provisions. of the court. delivered the

Mr. Justice STRONG opinion case, are called in this to review We judgment upon, the validity Court of Pennsylvania, affirming Supreme State, of the which the error statute plaintiffs allege, the Federal Constitution. to be repugnant the statute whether The case presents question taken far as it a tax up imposes upon freight question,—so outside, or taken it, and carried out of up within the State words, it, within in different or, and delivered the State delivered taken other than that up upon to the provision repugnant within —is “ that Con- ordains States which United Constitution with foreign shall have power regulate gress States,” or conflict the several nations among “ of- the consent without shall, that no State the provision or exports, or duties on imports lay imposts Congress, for executing what necessary absolutely except laws.” inspection to trace It calls us one. grave

* Wallace, 152. op of the court. Opinion limits of State between the traced, to be difficult line, always taxation, duty the power in imposing sovereignty inter- Federal protect government *34 the it is of hand, one While, state upon commerce. should that the States possess utmost importance aof State all the to raise revenue for purposes government, not inconsistent manner means, and by any have conferred upon of the States people powers the do- that it is Government, important the General equally invasion, free from latter should be main of the preserved which de- should be sustained and that no legislation Constitution, Federal or feats the avowed purposes committed or control subjects which assumes regulate, Congress. Constitution exclusively di a consideration of the however, Before proceeding, is in direct conflict with the statute rect whether question it is States, of the United of the Constitution any provision subject to have a clear apprehension necessary has been it. It the tax repeatedly the nature of imposed by of a or the constitutionality, unconstitutionality held that determined, the form or not tax is to be agency it is to be but collected, subject upon through was decided the cases of is laid. This which the burden in TheBank Tax New York City,* Bank Commerce Case† and ProvidentBank v. Massachus v. Coite,‡ Society Savings that the bank was re all these cases it In appeared etts.§ the decisions turned tax, the statute pay quired by was the tax, what subject upon the question, upon rest, upon did the burden really what into its Hence, exacted treasury. whom the State payment burden rested that the ultimate it upon where appeared securities, States the bank invested United property where it rested unconstitutional, but was held upon it was sustained. bank, franchise then, is the tax the act what, imposed by Upon August 25th, as laid Where to be considered ? does sub- 1864,

* § Wallace, 2 Black, 200. 6 Id. 594. Ib. 611. ‡ † Case of

Opinion of the court. stantial burden rest? it was not intended to Very plainly nor is it in be, fact, tax the franchise of the upon carrying their or their business companies, upon property, upon measured the number of tons of carried. theOn freight it is laid contrary, expressly upon carried. freight to the State treasurer companies required pay “ use of the on each Commonwealth, two pounds thousand so a tax at the carried,” And this freight specified rates. tax is not to the business done in proportioned transporta- It is the whether the be tion. same moved one mile freight hundred. If a road and carried upon put freight three is to the amount of all, it, at the tax paid upon being determined the character of the And when it is freight. “where the the act same observed provides different but be carried over and continuous lines, shall *35 with as if tax it had said shall be been chargeable freight and the whole tax shall be line, one carried paid upon as the State treasurer of said select such one companies may is left for doubt. This thereof”’ no room pro- notify the tax has no reference to the demonstrates vision the case of lines In connected of the business companies. carried over the line of one com- of tons thousands of that to the tax. company pay without liability pany which of several shall decide is to pay treasurer The State act which is still another There the. provision the whole. intended to not be im- of the tax was that the burden shows neither it, upon companies designated posed upon their business. The or franchises, pro- their their property, “ lines of whose improve- vision is as follows: Corporations for the used transportation ments are others freight, tolls for such arise from charged whose earnings only the tax- to said authorized add imposed are to use, hereby the same therewith.” and to collect tolls, Evidently the tax that of the com- for beyond liability contemplates and it authorizes into the to treasury, required pay pany carried, laid to be exemption upon freight the burden It carries the tax the roadway. the corporation owning carried. the carrier to Improve- thing over beyond xv. YOL. oe the State of the court.

Opinion carriers, to act authorized themselves ment companies, roadways, and maintain to construct but having only power limited thereof, are tolls for use generally charging allowed to charge. are rates of toll charters in the their the tax extent of tolls to the increase the to Hence right come the tax them in order that might was given com treasury from the and not transported, freight which not no such to companies It required grant panies. have the transport own their roadway only their limited, exact the tolls they may thereon. Though add the can, therefore, are not. They carriage charges authority.* further without tax to the charge statute it is these of the impos n view of provisions I that the burden of the from the.conviction sible escape or upon transported, consignor rests freight tax because the (imposed the freight consignee that the authorized to collect the company transported), it into the State inis, effect, and required pay treasury The law has operation tax-gatherer. practical only when illustrated by well been commenting upon another† the State of Delaware similar to the one very statute now “ said, líe The position under carrier consideration.. that of one to this law whom substantially under public out—who are farmed undertakes contract to taxes ad revenue required vance government power by like distress to collect a amount out suit those upon is laid. the tax difference only whom imaginable is, taxes farmed out, in the case of that, obligation ac *36 to the count assumed government voluntarily by contract as law, not the carrier imposed by upon under act; this that different means for also, provided the tax raising those out of with it.” ultimately chargeable then, as it, nianifest the Considering demanded act is the the upon imposed, but company, the upon * Boyle v. The Railroad Reading 54 Company, Pennsylvania State, Vide 310; Valley Railroad Co.’s Appeal, Cumberland 62 Id. 218. in Philadelphia, Bates Clarke v. Wilmington, Chancellor and Baltimore † Co. Railroad 275 Dee. 1872.] the State of the court. Opinion we to carried, and because proceed inquire carried, freight commodities far as it affects transported through so whether, within State to without the points or from points it, without points within or from it, points interstate commerce. Beyond is a act regulation or of the subjects freight, transportation ais con sale, purpose exchange never doubted, itself. This has been of commerce stituent articles of from one trade probably minds was idea another State to prominent when to was com the Constitution, framers of Congress the several commerce mitted among power regulate restrictions A embarrassing any States. power prevent was desired. given by was thing which was conferred and in the same clause same words It would with nations. foreign transmission subjects be absurd to that the suppose or from the to the place of trade from the State buyer, was not with to the market, contemplated, production trade either consummated out that there could be no In -his work on the the States. nations among foreign the sense which asserts that Constitution,* Story Judge in that instrument includes not is used the word commerce And in the intercourse and traffic, navigation. only “ consists‘in it was Commerce Cases, said: selling Passenger † as well articles of necessity, the superfluity, purchasing from one nation and manufactures, in buying productions merchandise from another, or transporting selling tp Nor does it freight.” the seller to buyer gain of commodi make difference whether interchange either ease the land or water. In ties bringing is commerce. from the seller to buyer Among the goods laud when the it must been-principally by States have Constitution adopted. is not a tax

Then, transported why interstate and, transportation, to State * Howard, 416. † *37 ojt of the court.

Opinion Is States? a therefore, among regulation ishe a rule for transporter, it prescribing into of commerce the subjects be controlled bringing is the case The them out ? and in State, present taking of Pennsylvania The illustration. legislature best possible taken up ton of has in effect declared every taken in other States or out, up within the State and carried tax. shall limits, specified within her pay brought is made condition, tax is a upon payment of this branch of commerce. the prosecution dependent im- rate of taxation she And as there is no limit may be can it is obvious condition all, if she tax at may pose, so onerous that an of commodities interchange made States would rendered The same other be impossible. a tax of two cents ton that may upon impose per out of the one of five dollars. State, carried may impose coal small, an whether restraint large Such imposition, have the of commerce privilege subjects another one State to without ob- pass freely being the intervention of State structed lines. It would hardly we that had maintained, think, established custom-houses her wherever borders, a railroad or canal line, comes to and demanded at these houses to enter merchandise or to leave the State duty allowing one of those or canals, such an upon railroads imposition not have been a would commerce with her Yet see sister States. it is difficult to substantial differ- any ence between the case and the we one have in supposed hand. The of no citizen of New York, New goods Jersey, Ohio, State, or of other any placed canal, upon railroad, or within the steamboat State for transportation either distance, into or out of the any without being to the burden. Nor can subjected make difference that the was to raise legislative for the purpose money sup- of the State and not port government, regulate transpor- tation. is not It of the law, but purpose its effect, which we are now Nor is it at all material that the considering. tax is levied as well that which is freight, wholly *38 Freight Case oe the State Tax.

Opinionof the court. are not internal as that in interstate We embarked trade. moment further than whether at this taxing goods inquiring is a of because regulation carried carried they carriage. if an act The State tax its internal commerce, may is is it unconstitutional, tax interstate or foreign within the not cured in its subjects by provisions including a rule for domain of the Nor is prescribed carriage State. a a the less regu- of out into State of, or any goods through, the same rule lation of because may ap- transportation Doubtless which is internal. wholly plied carriage aIf commerce as it its internal pleases. State may regulate or to exact conditions passage State chooses allowing another or into of persons freight through carriage to it of the exaction is not the nature changed adding within conditions for wholly similar transportation allowing the State. taken defendants notice here a

We may position that the defended error, stoutly argument, com- is instead of levied, being for the use of the works internal improvement pensation virtue under the State constructed authority State; in that it is words, other of franchises granted by which, for the use.of the part right a toll highways, into order to be her eminent domain, paid her if the works were in own We are asked, her treasury. in the were of them, if she the owner what hands, provision her revenue forbid her to increase Constitution would Federal over them? an increase of transportation charge franchises, hands creatures her in the When exercising tax the fran- instrument forbids her to clause what tolls authorize the tax to be added to chises, existing franchises ? rests That upon misconception argument We our minds evident. concede statute is to right very of the State to tax franchises of corpora- and power whe- of the owners of artificial and the tions, right highways, be the or franchises owners ther such grantees exact for the use of their what Í3tate, please ways. oe the the court. Opinion of is not this tax 'of But an ownership. attribute That nor those upon franchises of corporation, laid upon It is laid eminent domain. of the State’s who hold a part with the owners of deal highways who those owner is not herself the The State means conveyance. is not the motive The tax power. nor the roadways, her or her services rendered by agents. compensation the cost of beyond It something in the therefor. no Having ownership ordinary charges *39 income, has no title to their ex- the State canals or railroads it the charters of she reserved compa- far as so cept a services are compensation Tolls freights nies. a or furnished to facilities passenger transporter. or rendered, or furnished the State. A tax by not rendered These is a a toll demand of a demand proprietor- is sovereignty; this act is therefore not tax levied a toll. It by ship. for the use of the exacted compensation not roadway; is to make terms for the use were, if it of the right franchises, not is in grantee roadway grantor. has no more truth, demand a right But, por- tolls which the her franchises grantees tion to demand a would have than she portion exact the rents she had sold. She may laud which virtue of her tax income, and measure tax but the income sovereignty, this, her reach. All however, abstract and beyond itself us. That the act case before from the 1864 was not apart for the use of assert a claim or public works, intended is too tolls, for a apparent claim ob- part escape The tax imposed upon carried freight servation. whether incorporated by the companies, steamboat State or privileges and whether exercising not, granted by It reaches down up not. freight passing Dela- or carried Ohio Divers and the by companies ware who derive from who are Pennsylvania, grants no rights exercising domain; and, eminent of her as we no have part noticed the tax is not to services heretofore, proportioned rendered, canals or made of use It is railways. same,' to.the or short. transportation long It whether must there- of the court. Opinion fore be considered an exaction,in right alleged sovereignty, or the out freight transported, of, or the State —a burden into, interstate through upon intercourse.

If, this is tax then, carried between States, of its because and if such a tax is transportation, in effect a of interstate conclusion commerce,'the seems it to be inevitable that is in conflict with the Consti tution of the States. It is United not to the necessary pres case at ent into go large much-debated whether the the Constitution power given to.Congress by the States is exclusive. In the among earlier decisions of this court was said to have been so vested in that no entirely of it can be exer Congress part cised State.* It often has, indeed, been argued, sometimes intimated, court far that, so Congress has the States legislated subject, may legislate interstate Yet, commerce. if respecting can, they why may not add to commerce with nations regulations foreign those made if not inconsistent with beyond by Congress, for over both them, and interstate com foreign *40 merce is conferred the Federal upon same legislature by And words. it has never been decided certainly this yet court that the as well power interstate, regulate foreign commerce, is not Cases that exclusively have Congress. sustained State to be laws, of commerce alleged regulations have been such as States, related to among or bridges dams across streams within a State, or wholly health police or laws, of a kindred nature, subjects strictly commercial The were such, as in subjects regulations. Gilman v. Philad it was said “can be best elphia,† rules regulated by circumstances of provisions suggested by differ varying localities, ent and limited in their to such operation localities However this be, rule respectively.” has been may as serted with clearness, that whenever the great subjects over commerce is asserted are in their

* Ogden, Wheaton, 1; Passenger Gibbous v. Cases, Howard, 9 7 283. Wallace, † State court.

Opinion or plan admit of one uniform national, nature or system a nature as to be of such be said regulation, may justly they trans Surely exclusive require legislation Congress.* or State, merchandise or through portation passengers of national It is this nature. another, from one State to should but one there that subject that over importance can tax State directly persons for if one regulating power, tax them it, indirectly or property passing through other may, a tax their every upon transportation, levying between States remote and thus commercial intercourse Western The produce each other may destroyed.. from Eastern mar excluded thus be States effectually tax, of a bear imposition single for kets, might though was to the load of It under many. it would be crushed such commercial embarrass the possibility guard doubt, commerce no regulating ments, the Federal was conferred the States upon govern among ment. it was held California,† v. Almy

In a tax a law of the State bills upon imposing court from that or silver transported gold lading a tax without substantially place upon port and was therefore unconstitutional. itself, transportation rested on the that it was a tax decision was ground True, Parham,‡ v. subsequently, exports, upon Woodruff of the reasons the correctness for the denied given court same time said at the the case was decision; but well reason, that such tax was a viz., another regu decided commerce—a imposed lation another, State to over the seas, from one high of goods of transit of with that freedom goods persons conflict another, which is State and within the one rule laid between Nevada,§and with of Con in Crandall authority down the States. among to regulate gress *41 Gilman, Howard, * Wardens, 299; 12 Port v. Cooley Philadelphia, supra; v. Nevada, Wallace, The State of 6 42. v. Crandall Howard, Wallace, 169. 8 123. 6 Id. ‡ § † Dec. 1872.] the State of the court.

Opinion that it Nevada, where appeared In Crandall should enacted that there had of the State legislature dollar of one upon levied and tax “be collected capitation railroad, the State any stage-coach, every person leaving in the business vehicle or other employed engaged hire,” proprie and required passengers transporting to make monthly so tors, owners, corporations engaged the tax, and to carried, of the number of pay persons reports carriers, ruled to be it was that paid by required though of being for the was a tax privilege the tax upon passengers, a tax on the business and not State, out of carried law held that the that reason it was imposing For carriers. with the Constitution it conflict invalid, was it is declined court, true, A States. United majority was a the tax that rest the decision upon ground commerce, and therefore beyond of interstate that but all the judges the State impose, agreed The Chief void. law was unconstitutional should Clifford and Mr. Justice judgment thought Justice that the act of been exclusively ground have placed con inconsistent with the the State legislature sev commerce ferred regulate among upon Congress held other it does not States, and appear judges eral In view of the case, thus inconsistent. was not that it cannot tax decides that persons it however, pass Interstate or out of it. transportation pas through, ing of a State And if reach is legislature. beyond sengers from one State another, State taxation passing persons interstate is a State passengers upon if State tax unconstitutional, possible, a. fortiori, upon to from State merchandise conflict the carriage Merchandise is Constitution. with the Federal subject commerce; is essential to of commerce. Transportation tanto pro restriction. What laid burden upon every true doctrine be the therefore, ever, respecting vested Congress the power exclusiveness it as States, we established regard among a tax transported can impose no State *42 Pennsylvania. Railway Company Erie of the case. Statement of such trans- because or State, transporter portation. we this, fully

But while recognize holding commerce, internal its own its discretion each State to at or business of own corpora- the franchises, property, intercourse, trade, tions, so interstate must remain free. That restricted. embarrassed or that, in our is opinion, the whole The conclusion of 1864, 25th, August act of the Pennsylvania legislature carried articles far as it through so applies it, or articles and carried out of taken in the State articles up it, into is unconsti- brought taken without the State up and void. tutional

Judgment is remitted for further record reversed, proceedings opinion. accordance with In Mr. Justice whom concurred

Mr. Justice SWAYNE (with DAVIS), dissenting. read. In my

I dissent just judgment, opinion those pay the business of required is the tax imposed upon the extent the mode of ascertaining it. The only tonnage between discrimination made no That business. and that the State, brought within carried wholly think, as I it, this, or out of sets into or carried through on the subject. and is conclusive a clear light, Note. an- case adjudged same time with preceding At other, Pennsylvania. Railway Company v.

Erie Court in error to one, Supreme like the case, A preceding case, was in the error, present The plaintiff of Pennsylvania. acts York, Newof created by a corporation