2

was contrary to the Constitution of the United States, and void. From a judgment against him affirmed in the Court of Errors of the state of New York. he sued out a writ of error, on which the question was brought to this court. It was here held, at the January Term, 1849, that the statute was repugnant to the Constitution and laws of the United States, and therefore, void." 1 Miller, J., added, "so far as the authority of the cases of New York v. Miln and the Passenger Cases can be received as conclusive, they decide, that the requirement of a catalogue of passengers, with statements of their last residences and other matters of that character, is a proper exercise of state authority, and that the requirement of the bond, or the alternative of money of such passenger is void, because forbidden by the Constitution and laws of the United States. But the Passenger Cases. . . . . were decided by a bare majority of the court. Justices McLean, Wayne, Catron, McKinley, and Grier held both statutes void, while Chief Justice Taney and Justices Daniel, Nelson, and Woodbury held them valid. Each member of the court delivered a separate opinion, giving the reasons for his judgment, except Judge Nelson, none of them professing to be the authoritative opinion of the court. Nor is there to be found in the reasons given by the judges, who constituted the majority, such harmony of views as would give that weight to the decision, which it lacks by reason of the divided judgments of the members of the court." Therefore, after as before the decision of the Passenger Cases, the question remained an open one until it was authoritatively determined by the unanimous judgment of the court in the case of Henderson v. The Mayor of New York.3 In that case the quesNew York statutes,

tion was as to the validity of the

17 How. 572.

2 92 U. S. 269.

392 U. S. 259.

which had been so amended as to require from the owner, or consignee, of every vessel bringing from a foreign port into a port of the state passengers not being citizens of the United States a bond, in a substantial penalty, conditioned to indemnify the state against any expenditure for the relief or support of the particular passenger, or, in default of such bond, the payment of a duty of $1.50 on the importation of each passenger. The argument was that "the requirement of the bond is but a suitable regulation under the power of the state to protect its cities and towns from the expense of supporting persons who are paupers or diseased, or helpless women and children, coming from foreign countries," and that the payment of the duty in lieu of giving the bond was a voluntary payment, and not a tax. But the court held, that the intent of the statute was to compel, by the imposition of a burdensome alternative, the payment of the duty; that the duty was in effect, imposed upon, because ultimately payable by, the passengers, and it was therefore, a tax upon foreign commerce, and, as such, void. In the case of the Commissioner of Immigration v. North German Lloyd,' a similar statute of Louisiana was held to be void. In Chy Lung v. Freeman, it was held, that a statute of California, requiring under similar conditions. a bond or a commutation in money, not for all passengers, but only for certain classes of passengers, and in particular for "lewd and debauched women," was, on the like reasoning, void. In People v. Compagnie Générale Transatlantique, the question was as to the validity of a statute of New York, entitled "an act to raise money for the exercise of the inspection laws of the state of New York," and levying "a duty of one dollar for each and every alien passenger, who shall come

1 92 U. S. 259.

2 92 U. S. 275.

3 107 U. S. 59.

by vessel from a foreign port to the port of New York, for whom a tax has not heretofore been paid," and the court held the statute to be void, on the grounds that the words "inspection laws," "imports," and "exports," as used in the Constitution, refer not to the persons, but to property, and that the case, therefore, came within the ruling of the cases which have been cited. The rule, therefore, as to the taxation of passengers coming by water into the ports of a state from foreign countries and from other states is that the United States may, and the states may not, directly or indirectly, tax such passengers. The application of the same principles determined the case of the Philadelphia and Southern Steamship Co. v. Pennsylvania,' in which the question was as to the liability of the gross receipts of a steamship company derived from the foreign and interstate transportation of persons and property to taxation by the state incorporating the company, and the court decided against the liability, overruling the case of the State Tax on Railway Gross Receipts.2

38. The cases as to state taxation of goods, as subjects of interstate commerce, follow in the same line. The first case is Almy v. California, in which the facts were that a statute of California having imposed a stamp duty "on bills of lading for the transportation from any point or place within that state to any point or place without the state," of gold or silver coin, and bars, and gold dust, and Almy having been indicted and convicted in the state court of last resort for violation of that law, in that he, as master of the ship Rattler, then lying in the port of San Francisco, received on board certain gold dust for transportation to New York, and issued therefor an unstamped bill of lading; the judgment was reversed in the Supreme Court of the

1 122 U. S. 326.

2 15 Wall. 284.

8 24 How. 169.

In

United States, on the grounds that the statute of the state was void for repugnancy to the constitutional prohibition of state duties on imports and exports, a duty on a bill of lading being in substance a duty on the merchandise represented by that instrument. Woodruff v. Parham, Miller, J., in delivering the judgment of the court says, "it seems to have escaped the attention of counsel on both sides, and of the Chief Justice who delivered the opinion, that the case was one of interstate commerce. No distinction of the kind is taken by counsel, none alluded to by the court, except in the incidental statement of the termini of the voyage. The case, however, was well decided on the ground taken by Mr. Blair, counsel for the defendant, namely, that such a tax was a regulation of commerce, a tax imposed upon the transportation of goods from one state to another, over the high seas, in conflict with that freedom of transit of goods and persons between one state and another, which is within the rule laid down in Crandall v. Nevada,2 and with the authority of Congress to regulate commerce among the states." The next case is Woodruff v. Parham,3 in which the facts were that the city of Mobile having, under the legislative authority of the state of Alabama, imposed a tax upon "sales at auction," and Woodruff having, as an auctioneer, sold in their original and unbroken packages merchandise, the product of states other than Alabama, resisted payment of the tax, and an action having been brought in a court of the state against him, to recover the amount of the tax, judgment was entered against him, and affirmed in the Supreme Court, on the ground that, as the constitutional prohibition of duties on imports and exports has reference not to articles imported from one state to another, but

18 Wall. 137.

2 6 Wall. 35.

3 8 Wall. 123.

only to articles imported from a foreign country into one of the United States, or from one of those states to a foreign country, the tax in question was not a duty on imports or exports; and that as the tax had an uniform application to all "sales at auction" within the city of Mobile, and did not discriminate as against "sales at auction" of the products of other states, it was not open to objection as an attempted regulation of interstate commerce. In Brown v. Houston,2 the question was as to the liability to taxation in New Orleans under the authority of the state of Louisiana of certain coal which had been consigned by a resident of Pennsylvania to his agent in New Orleans for sale, the assessment for taxation being made under a statute of Louisiana taxing at the rate of "six mills on a dollar of the asse-sed valuation hereafter to be made of all property situated within the state," and the coal, when assessed, being afloat in the port of New Orleans in the vessel in which it had been transported from Pennsylvania. The court held that the coal was properly taxed, inasmuch as, under the authority of Woodruff v. Parham, it was not an "import," and by reason of its consignment for sale at New Orleans and its delivery at that port for that purpose, it had become merged in the mass of property within the jurisdiction of the state of Louisiana. In Coe v. Errol, the question was, "whether the products of a state, in this case timber cut in its forests, are liable to be taxed like other property within the state, though intended for exportation to another state, and partially prepared for that purpose by being deposited at a place of shipment, such products being owned by persons residing in another state." The court held, that, as "a

1 Nelson, J., dissented, on the ground that the tax was a duty on imports,

and as such wrongfully imposed.

2 114 U. S. 622.

3 116 U.S. 517.

♦ Per Bradley, J., at p. 524.