Opinion of the court.

which shall appear to him most convenient and proper. Variations from the usual course of proceedings in such matters are also necessarily made at all the ports and places where lighters are required in loading and unloading ships and vessels engaged in commerce and navigation.

More than half a century has elapsed since the act of Congress was passed establishing the town of Mobile the sole port of entry for that district, and the record furnishes abundant reason to conclude that the course of proceedings throughout that entire period, in respect to imported goods brought there from foreign countries in ships and vessels whose draft was such that they could not cross the inner bar, has been the same as that heretofore described. Permanent as the obstruction to navigation is, the case is much stronger even than the one for which provision is made in the principal collection act, and after such long acquiescence by all interested in the course pursued by the officers of the customs, the court is of the opinion that the proceedings may well be sustained.

Congress has the power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes, and the Constitution also provides that no State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, with a view to raise a revenue for State purposes. The State of Maryland passed a law requiring all importers of foreign articles, enumerated in the law, and other persons selling the same by wholesale, before they should be authorized to sell the imported articles, to take a license, for which they were required to pay fifty dollars, and in case of refusal or neglect, the provision was, that they should forfeit the amount of the license tax and be subject to a fine of one hundred dollars.* Subsequently an importing merchant, resident in the State, refused to pay the tax, and the State court sustained the validity of the State law, and imposed on him the penalty

* Brown v. Maryland, 12 Wheaton, 437.

Opinion of the court.

therein prescribed. Dissatisfied with the judgment he removed the cause into this court by writ of error, and this court held, Marshall, C. J., giving the opinion of the court, that the State law was a tax on imports, and that the mode of levying it, as by a tax on the occupation of the importer, merely varied the form in which the tax was imposed without varying the substance; that while the articles imported remained the property of the importer in his warehouse in the original forms or packages in which they were imported, a tax upon them was too plainly a duty on imports to escape the prohibition of the Constitution, but the court admitted that whenever the importer has so acted upon the thing imported that it has become incorporated and mixed with the mass of property in the country, it must be considered as having lost its distinctive character as an import, and as baving become subject to the taxing power of the State.

Sales by the importer are held to be exempt from State taxation because the importer purchases, by the payment of the duty, a right to dispose of the merchandise as well as to bring it into the country, and because the tax, if it were held to be valid, would intercept the import, as an import, in the way to become incorporated with the general mass of property, and would deny it the privilege of becoming so incorporated until it should have contributed to the revenue of the State.*

But the sales of the goods imported in this case were made by the shippers or consignees, and the complainant was the purchaser, and not the first vendor of the imported merchandise, and it is settled law in this court that merchandise in the original packages once sold by the importer is taxable as other property.†

When the importer sells the imported articles, or otherwise mixes them with the general property of the State by breaking up the packages, the state of things changes, as was said by this court in the leading case, as the tax then

173

* Brown v. Maryland, 12 Wheaton, 443; Almy v. California, 24 Howard.

Pervear v. Commonwealth, 5 Wallace, 479.

Statement of the case.

finds the articles already incorporated with the mass of property by the act of the importer.

Importers selling the imported articles in the original. packages are shielded from any such State tax, but the privilege of exemption is not extended to the purchaser, as the merchandise, by the sale and delivery, loses its distinctive character as an import.

DECREE AFFIRMED.

WOODRUFF v. PARHAM.

The term "import," as used in that clause of the Constitution which says, that "no State shall levy any imposts or duties on imports or exports," does not refer to articles imported from one State into another, but only to articles imported from foreign countries into the United States. Hence, a uniform tax imposed by a State on all sales made in it, whether they be made by a citizen of it or a citizen of some other State, and whether the goods sold are the produce of that State enacting the law or of some other State, is valid.

ERROR to the Supreme Court of Alabama. The case being thus:

The Constitution thus ordains:

"Congress shall have power to regulate commerce with foreign nations and among the several States."

"No State shall levy any imposts or duties on imports or exports."

"The citizens of each State shall be entitled to all the immunities and privileges of citizens of the several States."

With these declarations of the Constitution in force, the city of Mobile, Alabama, in accordance with a provision in its charter, authorized the collection of a tax for municipal purposes on real and personal estate, sales at auction, and sales of merchandise, capital employed in business and income within the city. This ordinance being on the city statutebook, Woodruff and others, auctioneers, received, in the course of their business for themselves, or as consignees and

Argument against the tax,

agents for others, large amounts of goods and merchandise, the product of States other than Alabama, and sold the same in Mobile to purchasers in the original and unbroken packages. Thereupon, the tax collector for the city, demanded the tax levied by the ordinance. Woodruff refused to pay the tax, asserting that it was repugnant to the above-quoted provisions of the Constitution. The question coming finally, on a case stated, into the Supreme Court of the State, where the first two of the above-quoted provisions of the Constitution were relied on by the auctioneers as a bar to the suit, the said court decided in favor of the tax. And the question was now here for review.

Messrs. J. A. Campbell and P. Hamilton, for the plaintiffs in

error:

The question is: Can a State tax imports into it from other States of the Union?

That question has been answered by Chief Justice Marshall in Brown v. Maryland.* The question there was the propriety of a license tax imposed by the State upon the merchant, as a prerequisite of the right to sell the imported article. After discussing the general principles involved in the constitutional prohibition upon the State to levy imposts or duties on imports or exports, and deciding that this tax, though indirect in form, was, in fact, a duty on imports, and therefore illegal, he remarks:

"It may be proper to add, that we suppose the principles laid down in this case, apply equally to importations from a sister State."

It is true, the remark of the Chief Justice was not directly upon the point in judgment, but it was upon a matter of almost identical character; and when regard is had to the history of the times immediately preceding the establishment of the Constitution, and to the causes which led to its formation-the conflicting commercial claims of the several States, and the evils thereby produced, calling for the estab

* 12 Wheaton, 449.

Argument against the tax.

lishment of uniform laws, and the creation of a National legislation which should be uniform, the land throughoutthe force of the remark falling from that eminent judge, and announced as the conclusion of the court, carries with it the weight of judicial authority.

That opinion has been declared, in Almy v. California,* to be the judgment of the court.

In that case, California, for purposes of revenue, directed a stamp tax to be imposed on bills of lading for the transportation, from any point or place in that State to any point or place without the State, of gold or silver in any form. The master of a ship, then lying in that State, refused to pay for the stamp on a bill of lading, signed by him, for the transportation from California to New York of some gold placed on his vessel, and was indicted for this violation of the law. The question then was: Is this stamp act, so required to be paid by State authority, an impost or duty on an export, within the meaning of the constitutional prohibition upon the State? It was held, by a unanimous bench, that the tax fell within the terms of the prohibition. As in this case, so in that, the transportation was between States: it was from the State of California to the State of New York. The transaction had no relation to commerce with any foreign nation. It was between two States; they alone were concerned.

The transaction was an export from one State to another State. It was, nevertheless, held to be a case of export; and, therefore, protected against any interference or regulation by mere State authority. If that be so, impórts and exports being placed by the terms of the fundamental law upon a footing of perfect equality, as to State imposition, the import in this case is equally protected with the export in that, and the State law is equally void. ·

Upon the authority of the two cases cited, the argument is exhausted. The one is the complement of the other: the two cover the whole ground of import and export into and

* 24 Howard, 169.