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bonds issued for this purpose will become a contract, the obligation of which cannot be impaired.120

All private corporations are impliedly subject to such reasonable regulations as the Legislature may prescribe which do not interfere with the substantial privileges conferred by the charter of the corporation.121

§ 98. Powers, the exercise of which is prohibited to the States except with the consent of Congress.-The second and third clauses of the tenth section of the first article of the Constitution enumerate the powers, the exercise of which is denied to the States without the consent of Congress, as follows:

"No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid down by any State on imports or exports shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

"No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."

§ 99. Import and export duties.—In these clauses we find all the express restrictions upon the States' power of taxation which are contained in the United States Constitution. The points which have been discussed by the Supreme Court relative to import and export duties are of two classes, involving (1) whether the State statutes under consideration did in effect lay duties on imports or exports so as to bring it within the general restriction, or (2) were the measures absolutely necessary to carry into execution the local inspection laws, and therefore constitutional as falling within the saving exception contained in the clause. The leading case on this question, that of Brown v. Maryland,1 came before the Supreme Court on a writ of

122

120 Gilman v. Sheboygan, 2 Black,

515.

121 Wabash, etc., Ry. v. Illinois,

118 U. S., 564; Sherman v. Smith, 1 Black, 592.

122 12 Wheaton, 419.

error to a judgment rendered in the Court of Appeals of Maryland, affirming a judgment of the City Court of Baltimore, for violating an act of the Legislature of Maryland. The indictment was founded on the second section of that act, which was as follows: "And be it enacted that all importers of foreign articles or commodities, of dry goods, wares or merchandise, by bale or package, or of wine, rum, brandy, whisky and other distilled spirituous liquors, etc., and other persons selling the same by wholesale, bale or package, hogshead or tierce, shall, before they are authorized to sell, take out a license, as by the original act is directed, for which they shall pay fifty dollars, and in case of neglect or refusal to take out such license shall be subject to the same penalties and forfeitures as are prescribed by the original act to which this is a supplement." The indictment charged the plaintiffs in error with having imported and sold one package of foreign dry goods without having license to do so. A judgment was rendered against them on demurrer for the penalty which the act prescribed for the offense. The plaintiffs in error insisted that this act of the State of Maryland was repugnant to two provisions in the Constitution of the United States:

1. To that which declared that "no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws."

2. To that which declares that Congress shall have power "to regulate commerce with foreign nations and among the several States and with the Indian tribes."

This contention of the plaintiffs in error was upheld by the court and the act of the State of Maryland was declared unconstitutional, as repugnant to both of the above provisions of the Constitution.

That a reasonable interpretation must be given to this clause is shown by the decision on Mager v. Grima,123 in which case it was contended by the plaintiff in error that a law of the State of Louisiana, by which every person not being domiciled in that State, and not being a citizen of any State or Territory

1238 Howard, 490.

in the Union, who should be entitled, whether as heir, legatee or donee, to the whole or any part of the succession of a person deceased, should pay a tax to the State of ten per cent of the value of the property thus received, was in violation of the United States Constitution. The court said:

"We can see no objection to such a tax, whether imposed on citizens and aliens alike, or upon the latter exclusively. It certainly has no concern with commerce, or with imports or exports. It has been suggested, indeed, in the argument that, as the legatee resided abroad, it would be necessary to transmit to her the proceeds of the portion of the estate to which she was entitled, and that the law was therefore a tax on exports. But if that argument was sound no property would be liable to be taxed in a State when the owner intended to convert it into money and send it abroad."

The next important case involving the construction of this clause was that of Almy v. California.124 In this case of law of California, which imposed a stamp tax on bills of lading for transportation of gold or silver coin, gold dust, or gold or silver bars, or other form, when the same was to be transported from points within to points without the State, was a duty on exports and so in violation of the Constitution. But in Pace v. Burgess125 the charge for stamps required to be placed for purpose of identification on packages of manufactured tobacco intended for exportation was held not to be a tax on exports within the meaning of this clause of the Constitution.

Substantially the same questions as those involved in Brown v. Maryland came before the Supreme Court in Waring v. The Mayor of the City of Mobile,126 where it was again declared that sales by the importer in original packages were exempt from State taxation, but that such merchandise when once sold by the importer is taxable as other property, even while it still remains in the original packages. Sales by the importer by auction are as much protected by this clause as are sales made in any other manner. 127

124 24 Howard, 169.

125 92 U. S., 372.

128

8 Wallace, 110.

127 Cook v. Pennsylvania, 97 U. S., 66.

A definition of the meaning of the term duty on exports was given in the case of Brown v. Houston,128 where it was declared that a duty on exports must either be a duty levied on goods as a condition, or by reason of their exportation, or, at least, a direct tax or duty on goods which are intended for exportation. Where a general tax is levied on all property alike it cannot be construed as a duty on exports when falling on goods not then intended for exportation, though they should happen to be exported later. It was at one time held that the prohibition in this clause does not mean goods carried from one State of the Union to another, but applied exclusively to articles imported from foreign countries. 129 This distinction is no longer recognized.

Exportation is not begun until goods are committed to the common carrier for transportation out of the State, to the State of their destination, or until they have started on their ultimate passage to the State. Until that time they are taxable as a part of the general mass of property in the State, although they are not taxable as exports. The carrying of property in carts or vehicles, or floating it to the depot, where the journey is to commence, is no part of the exportation.130

§ 100. Duties of tonnage.-Tonnage, under the laws of the United States, is a vessel's internal or lineal capacity in tons of one hundred cubic feet each, to be ascertained in the manner prescribed by Congress. Tonnage duties are duties upon vessels in proportion to their capacity.131 An act of the Legislature of a State which requires vessels loading in the harbors of a State to pay three cents per ton, to be computed on the capacity of the vessel, for the privileges of the harbor, wharf, etc., is a tonnage duty, and when so levied without the consent of Congress is void.132 In general a duty on tonnage is a charge on vessels, according to their tonnage as instruments of commerce, charged for entering or leaving a port or navigating public

128 114 U. S., 622.

120 On this last proposition see also Woodruff v. Parham, 8 Wallace, 123; and as qualifying it see Leisy v. Hardin, 135 U. S., 100.

130 Coe v. Town of Errol, 116 U.

S., 517.

11 Inman Steamship Co. v. Tinker, 94 U. S., 238; State Tonnage Tax Cases, 12 Wallace, 204.

132 Id.

waters of the nation,133 but a municipal ordinance which provided for rates of wharfage, to be measured by the tonnage of the vessels landing thereat and using such wharf, is not in conflict with the Constitution.134 Vessels may be taxed on their

property value. 135

§ 101. Other denied powers, agreements or compacts; engaging in war; troops and ships of war.-The term "agreement or compact" has a much broader meaning than the expression of "treaty, alliance or confederation" used in the first clause of this ninth section of the first article. This term "compact or agreement" is given a broad meaning to prevent any dealings between a State and any foreign power. The use of all these terms, "treaty, agreement, contract," show that it was the intention of the framers of the Constitution to use the broadest and most comprehensive terms, and that they anxiously desired to cut off all connection or communication between a State and a foreign power, the Supreme Court of the United States saying on this point: "And we shall fail to execute that evident intention unless we give to the word 'agreement' its most extended signification, and so apply it as to prohibit every agreement, written or verbal, formal or informal, positive or implied, by the mutual understanding of the parties."136

A much more liberal rule towards the States is applied to those agreements or compacts which the States may make with one another. The controlling principle governing in such cases is set forth in detail by the Supreme Court in the recent case of Virginia v. Tennessee137 in the following words:

"The terms 'agreement' or compact taken by themselves are

13 Huse v. Glover, 119 U. S., 543. 134 Ouachita Pocket Co. v. Aiken, 121 U. S., 444; Cannon v. New Orleans, 20 Wallace, 577.

133

W. P. & Cin. Trans. Co. v. Wheeling, 99 U. S., 273. See also on the general subject of tonnage duties: Ward v. Maryland, 12 Wallace, 427; Southern Steamship Co. v. Port Wardens, 6 Wallace, 35; The North Cape, 6 Bissell,

505; Fed. Cases No. 10, 316; Transportation Co. v. Parkersburg, 107 U. S., 691; Morgan Steamship Co. v. Louisiana, 118 U. S., 455; Packet Co. v. St. Louis, 100 U. S., 423; Packet Co. v. Keokuk, 95 U. S., 80; Guy v. Baltimore, 100 U. S., 442.

136 Holmes v. Jennison, 14 Peters, 540, 571.

137 148 U. S., 501, 518.

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