quoted or condensed, and will be referred to again in Section III. of this chapter. One important rule was laid down which must not, however, be passed by in this connection. An article authorized by Congress to be imported continues to be a part of the foreign commerce of the country while it remains in the hands of the importer for sale in the original bale, package, or vessel in which it was imported. The authority given to import necessarily implies the right to sell the imported article in the form and shape in which it was imported; and no state, either by direct assessment or by requiring a license from the importer before he is permitted to sell, can impose any burden upon him or the property beyond what the law of Congress itself had imposed. But when the original package is broken up.for use or for retail by the importer, and also when the commodity has passed from his hands into the hands of a purchaser, it ceases to be an import or a part of foreign commerce, and may be taxed for state purposes. § 310. In the year 1847 the Supreme Court considered and determined a series of cases known as the License Cases.1 The facts were somewhat complicated, and varied in the different cases. I shall not attempt to state these facts at large. It is sufficient to say that the controversies arose under the license laws respectively of Massachusetts, New Hampshire, and Rhode Island. These statutes required a license fee for the sale of spirituous liquors, although they might have been imported, but did not apply to the importer himself. The cases turned upon the validity of these statutes. Two objections were urged against them, namely, that they laid duties upon imports and that they assumed to regulate commerce. The state laws were sustained. The question most elaborately argued by counsel and considered by the court was whether these statutes were void because they interfered with the power of Congress to regulate commerce. The license fees imposed by them were plainly not duties upon imports, within the meaning of the rule laid down in Brown v. Maryland. 15 How. 504. And this doctrine has been repeatedly affirmed in many subsequent cases. ED. § 311. The Passenger Cases,1 decided in 1849, were, in many respects, extraordinary. An attempt was made to commit the court to the state sovereignty doctrine, and to overturn many of the decisions which had upheld the supremacy of the general government. The attempt, however, failed. The case holds that statutes of New York and of Massachusetts imposing a tax upon alien passengers arriving within those states were void, although the proceeds of the tax were appropriated to maintain marine hospitals. In Cooley v. The Port Wardens,2 a law of Pennsylvania, imposing certain fees upon vessels, payable to the Master Warden, for the use of decayed pilots, was upheld; the impost was not a duty upon imports. Both of these cases, however, are principally important as they affect the subject of commerce. A recent judgment of the Supreme Court is found in Almy v. The State of California.3 It held that a statute of California imposing a stamp on bills of lading of gold exported from that state created a duty on exports, and was therefore void. And a statute requiring every auctioneer to pay into the state treasury a tax on his sales, so far as it applies to sales of imported goods sold by him for the importer, in the original packages, is void as laying a duty on imports, and also as regulating commerce.1 § 311 a.5 The power of a state to tax is confined to persons, property, and business within its jurisdiction. Bonds, therefore, issued by a railroad corporation, and owned by a foreigner residing abroad, cannot, in accordance with this principle, be taxed, even though they are secured by a mortgage on the company's land and other property situated 1 7 How. 283. And the doctrine of the Passenger Cases is now well settled. See Henderson v. Mayor of New York, 92 U. S. 259; People v. Compagnie Générale Transatlantique, 107 U. S. 59. ED. 2 12 How. 299. And see Wilson v. McNamee, 102 U. S. 572. 8 24 How. 169. Cook v. Pennsylvania, 97 U. S. 566. This and the following section were originally a part of the Appendix, but are now inserted here. ED. within the state. Taxes may be laid on vessels as property based on a valuation thereof; but taxes laid on the tonnage, that is, at so much per ton, are expressly prohibited; and it makes no difference that the vessels are both wholly owned by citizens of the state and ply their trade exclusively within its territorial waters.2 Nor can a state, in order to defray the expenses of its quarantine system, impose a tonnage tax on vessels owned in foreign ports and entering its own ports while engaged in commerce.3 The clause, "No state shall levy any imposts or duties on imports or exports," does not apply to articles imported from one state to another, but only to those imported from 1 Railroad Co. v. Jackson, 7 Wall. 262; Railroad Co. v. Penn. 15 Wall. 300. 2 State Tonnage Tax Cases, 12 Wall. 204; Inman Steamship Co. v. Tinker, 94 U. S. 238. In Transportation Co. v. Wheeling, 99 U. S. 273, it was expressly held that steamboats which ply between different ports on a navigable river may, under a state statute, be taxed as personal property by the city where the company owning them has its principal office and which is their home port, although they are duly enrolled and licensed as coasting vessels under the laws of the United States, and all fees and charges thereon, demandable under those laws, have been duly paid. The states can tax for their own support, and they can tax vessels as property. "Assessments of the kind, when levied for munici pal purposes, must be made against the owner of the property, and can only be made in the municipality where the owner resides." Passenger Cases, 7 How. 287. "The power to tax may be exercised at the same time upon the same objects of private property by the state and by the United States, without inconsistency or repugnancy. McCulloch v. Maryland; Providence Bank. Billings; Gibbons . Ogden." "Vessels are taxable as property,' says Cooley; and he adds that 'possibly the tax may be measured by the capacity, when they are taxed only as property, and not as vehicles of commerce;' which may be true if it clearly appears that the tax is to the owner in the locality of his residence, and is not a tax upon the ship as an instrument of commerce." Transportation Co. v. Wheeling, 99 U. S. 273. ED. 8 Peete v. Morgan, 19 Wall. 581. See Cannon v. New Orleans, 20 Wall. 577. So a town on navigable waters may erect a wharf, and forbid vessels landing elsewhere. Packet Co. v. Catlettsburg, 105 U. S. 559. And see Packet Co. v. Keokuk, 95 U. S. 80; Ouachita Packet Co. v. Aiken, 4 Woods, 208. ED. Hence a tax upon all or exported to foreign countries. sales made by any person, citizen or not, of goods, the products of the state, or brought from other states, there being no discrimination, is valid. A special tax, however, in the form of a license required from non-resident traders, and discriminating against them in favor of residents, is in direct violation of the second section of Article IV., and clearly void.2 § 311 6. Several cases have been decided which involve both the validity of some species of taxation and the powers of states over commerce. Those which principally turn upon the latter power and discuss it at large will be found quoted under the subsequent head, which relates to the regulation of commerce; the others may be mentioned in the present connection. A city ordinance, general in its terms and affecting alike all corporations engaged in the business of transportation, which imposes a license upon a railroad or express company chartered in another state and carrying on its business within the city, the business including the transportation of goods beyond the state, is not void as being in conflict with the provision of the Constitution authorizing Congress to regulate commerce among the states. As there is no discrimination, and the ordinance applies to all corporations, domestic and foreign, it does not fall within the doctrine of Ward v. Maryland, but rather comes within that of Woodruff v. Parham. Although this decision was made in respect to a city ordinance, its principle clearly includes the statutes of a legislature.3 A tax imposed upon railroads and based upon the gross receipts from their business, including that received from interstate transportation as well as that received from wholly internal traffic, is unobjectionable; it is not a tax upon imports, nor upon exports, nor upon interstate transportation, nor is it a regulation of commerce. It is laid down by the Supreme Court as a general principle, 1 Woodruff v. Parham, 8 Wall. 125; Hinson v. Lott, 8 Wall. 148. 8 Osborne r. Mobile, 16 Wall. 479, 482. that a tax levied by a state on its own corporations, on their property or franchises, when not discriminating against rights held in other states, and not laid upon imports nor exports nor on transportation to or from other states, does not conflict with any constitutional power of Congress.1 § 312. The cases which have been referred to show that the Supreme Court of the United States, at an early day, took high national ground upon the subject of taxation by the states, and has never receded from that position. On the other hand, it has given a fair and equitable construction to the exceptions contained in the organic law, and has allowed to the separate commonwealths as free and full exercise of the great function of taxing as is necessary for their existence as subordinate political societies. SECTION II. THE POWER TO BORROW MONEY. § 313. The second general grant of legislative power contained in Section VIII. of Article I. is in these words: "Congress shall have power. . . to borrow money on the credit of the United States." In this immediate connection should be read a clause of Section X., as follows: "No state shall emit bills of credit, or make anything but gold and silver coin a tender in payment of debts." But few questions strictly legal in their character have arisen or can arise under this provision authorizing Congress to borrow money. The language is as broad as possible; it contains in itself no limitations. The extent of the borrowing power must be, and is, commensurate with the wants of the government. For whatever purposes money may be expended, money may be borrowed to meet the expenditure. Nay, even though the money should be appropriated by Congress to some object, or in some manner not warranted by the organic law, this transgression could not, according to any principles of law or justice, invalidate the arrangement by which such money might have been borrowed. It 1 The Delaware R. R. Tax, 18 Wall. 206, 232. |