A State may not tax interstate commerce or goods coming from other States because of their origin.

A State may not lay a stamp tax on bills of lading issued either for exports or merchandise consigned to a place in another State.

Woodruff v. Parham (1869), 8 Wall. (75 U. S.) 123, was an action of trespass begun in the State Circuit Court of Mobile, Alabama, by Woodruff & Parker, auctioneers and commission merchants, of Mobile, against Parham, the tax collector of that City, for damages suffered by the seizure of their merchandise for the non-payment of the City tax of fifty cents on the hundred dollars in value of their gross sales of merchandise in the original packages in which they came from other States for this purpose. The payment of the tax was resisted as inconsistent with Section Ten of the First Article of the Constitution (supra, page 425). Judgment being rendered against the plaintiffs, they removed the case to the State Supreme Court, where it was affirmed June 5, 1867, on the authority of their decision in Hinson v. Lott (infra, page 735), on an opinion by Chief Justice WALKER, 41 Ala. 334, 337

The Alabama Court proceeded upon two grounds: first, that the States had concurrent power over commercial subjects until Congress positively acted, notwithstanding the principles of Cooley v. Port Wardens (supra, page 466), out of which has grown the present rule, that the State cannot legislate at all upon subjects admitting of uniform regulation, as to which the non-action of Congress is significant of an intention to permit entire freedom: supra, pages 420, 445, 448, 453.

Second, the Alabama Court followed Justices MCLEAN, CATRON, DANIEL and WOODBURY, in the License Cases (5 How. 46 U. S. 594, 611, 614, 623), and declared the Constitutional meaning of an import was something introduced from a foreign country and not from a neighboring State. This construction involved a consideration of the opinion in Almy v. State of California (1861), 24 How. (65 U. S.) 169,

where Chief Justice TANEY, with the assent of Justices McLEAN, WAYNE, CATRON, NELSON, GRIER, CAMPBELL and CLIFFORD, declared the State law void for imposing a stamp tax upon bills of lading for gold and silver transported "from any point or place in this State, to any point or place without the limits of this State :" Act of April 26, 1858, Statutes of 1858, page 305. Brown v. Maryland (supra, page 439) was unqualifiedly followed, though the gold was consigned to New York City and not to a foreign port, and the Alabama Chief Justice was disingenuous enough to say

The statement of the facts of the case is very meagre, and found only in the opinion of the Court. From that statement, it cannot be ascertained that the gold was not shipped [sic] to New York, in transitu for some foreign port. From some expressions in the argument of the Court, we infer that such was the case: (40 Ala. 134).

An examination of the to support this inference.

printed record discloses nothing On the contrary, the indictment in the Court of Sessions of the City and County of San Francisco, charged that

John C. Almy, Jr., is accused by the Grand Jury of the City and County of San Francisco, State of California, by this indictment, found this twentieth day of August, A. D., 1858, of the crime of misdemeanor, committed as follows:

* *

*

The said John C. Almy, Jr., * * *being the master of said ship, as aforesaid, made and executed, upon a piece of paper, a written and printed contract with the said Peter Prest, for the transportation and conveyance of the said gold dust of the value aforesaid, from the port of San Francisco aforesaid, to the port of New York aforesaid, a point outside of the limits of the State of California aforesaid, for and in consideration of one per cent. upon said gold dust, to be paid as freight by the said Peter Prest, his order or assign, on delivery of said gold dust at the Port of New York aforesaid.

Upon a re-argument, the Chief Justice admitted his error, after examining the printed transcript; but he then took the position that the question of export to another State had been passed without notice, and, as decided, was in conflict with the opinions in the License Cases: (40 Ala. 138, 141). When these Alabama cases reached the Supreme Court of the United States, Justice MILLER, in writing the opinion, adopted this last view of Chief Justice WALKER, to the ex

tent that the Court had overlooked the interstate feature of the bill of lading, and distinguished the precedent of that opinion by saying that it was well decided as the law conflicted with the Constitutional freedom of interstate commerce, within the rule laid down in Crandall v. Nevada, supra, page 464; STRONG, J., in Case of the State Freight Tax (1873), 15 Wall. (82 U. S.) 232, 280; Blatchford, J., in Pickard v. Pullman S. C. Co. (1886), 117 U. S. 34, 48. Still, the stamp required by this California law was said to be an export tax, by Justice BRADLEY, in Pace v. Burgess (1876), 2 Otto (92 U. S.) 372, 376; and by Justice MILLER himself, in the Trade Mark Cases (1879), 10 Otto (100 U. S.) 82, 95.

As a consequence of these views, the Supreme Court of the United States unanimously upheld this tax as one imposed on all sales of merchandise without regard to the State where the seller resided or whence the goods had been shipped, so long as no injurious discrimination ensued.

As already noticed (supra, page 440), there has been supposed to be a conflict between the principles of Brown v. Maryland and Woodruff v. Parham, notwithstanding the declaration of Justice MILLER, that the authority of Brown v. Maryland, was not to be questioned nor its principles departed from in this decision. The cause of this supposition may be inferred from the actual point decided in Woodruff v. Parham, as just mentioned in the last paragraph. The consequences of this principle will be considered later, in order to observe that the decision thus reached, depended upon confining the terms, imports and exports, to commerce with other nations, and to this extent overruling Almy v. California.

The authority of Brown v. Maryland, therefore, seems to have been unqualifiedly admitted in connection with the commerce power, but not with that over imports and exports; for Justice MILLER used this language:—

The case of Brown v. Maryland, as we have already said, arose out of a statute of that State, taxing by way of discrimination, importers who

sold by wholesale foreign goods. Chief Justice MARSHALL in delivering the opinion of the Court, distinctly bases the invalidity of the statute, (1) On the clause of the Constitution which forbids a State to levy imposts or duties upon imports; and (2) That which confers on Congress the power to regulate commerce with foreign nations, among the States, and with the Indian tribes. The casual remark, therefore, made at the close of the opinion, "That we suppose the principles laid down in this case to apply equally to importations from a sister State," can only be received as an intimation of what they might decide if the case ever came before them, for no such case was then to be decided. It is not, therefore, a judicial decision of the question even if the remark was intended to apply to the first ground on which that decision was placed.

If the Court then meant to say that a tax levied upon goods from a sister State, which was not levied on goods of a similar character produced within the State, would be in conflict with the clause of the Constitution giving Congress the right "to regulate commerce among the States," as much as the tax on foreign goods, then under consideration, was in conflict with the authority "to regulate commerce with foreign nations," we agree to the proposition: (8 Wall. 75 U. S. 139).

The sentence here quoted in MARSHALL'S words, had been objected to by Chief Justice TANEY and Justice McLEAN, in the License Cases (1847), 5 How. (46 U. S.) 578, 594; and has nearly always been treated, as here, by Justice MILLER, though without his vital distinction that the fault lay in applying it to impost taxes, when it should be confined to regulations of interstate commerce. Justice GRAY, (supra, page 521), is the last one to fail to observe this distinction.

This exclusion in Woodruff v. Parham, of the Constitutional power over exports and imports, in the case of articles carried from one State to another was immediately recognized by Justice MILLER himself: Hinson v. Lott (1869), 8 Wall. (75 U. S.) 148, 150; and afterwards by Justice CLIFFORD, in Ward v. Maryland (1871), 12 Wall. (79 U. S.) 418, 429; Justice STRONG, in State Tax on Railway Gross Receipts (1873), 15 Wall. (82 U. S.) 284, 296-7; Chief Justice CHASE, in Osborne v. Mobile (1873), 16 Wall. (83) U. S.) 479, 482; Justice HARLAN, in Guy v. Baltimore (1880), 100 U. S. 434, 437; and Justice BRADLEY, in Coe v. Errol (1886), 116 Id. 517, 526; and Brown v. Houston, where the decision was such a direct affirmance of Woodruff

v. Parham on this definition of imports and exports, that this is the proper place for its consideration.

Brown v. Houston (1885), 114 U. S. 622, was a case which originated in a petition by S. S. Brown and J. W. Schoenmaker, of Pittsburg, Pennsylvania, trading as "W. H. Brown," praying the Judges of the Civil District Court for the Parish of Orleans, Louisiana, December 30, 1880, to enjoin J. D. Houston, a State tax collector, from seizing and selling for non-payment of certain taxes, a lot of Pittsburg coal, then in New Orleans, in the hands of the agents of the plaintiffs for sale, and still on board the barges in which it had been transported from Pittsburg. The tax sought to be enjoined had been assessed under an Act of April 9, 1880 (Laws, pages 88-103), for levying taxes on all property in the State, and the coal assessed was afterwards sold to foreign steamships and planters by the boatload. The taxes were alleged to be illegal, because the coal remained in the original packages, as the wine did in Low v. Austin (supra, page 443); but with the difference of domestic, instead of foreign, origin, as in the latter case. Attention is drawn to this point, because there have been those who thought the decision in Brown v. Houston to have been overruled in the Original Package Case, supra, page 491.

The injunction was dissolved, February 12, 1881, and this decree was affirmed on appeal, by the State Supreme Court, May 16, 1881: (33 La. Ann. 843). The case was then removed to the Supreme Court of the United States, and again affirmed, upon the same points of law: first, that the coal was not an import, with an express affirmance of Woodruff v. Parham; second, that a subsequent sale for foreign use by one who did not allege himself to be an exporter, but simply a seller to any buyer, did not establish a case for immunity from State taxation. This point was more emphatically decided in Coe v. Errol (1886), 116 U. S. 517 (and infra). Third, that the restriction of the terms imports and exports to trade with foreign nations, does not operate so as to allow the States of the Union to infringe upon the Constitutional power to regulate commerce among