state has jurisdiction of all persons and things within its territory which do not belong to some other jurisdiction," such as the persons and the property of representatives of foreign governments, and "property belonging to, or in the use of, the government of the United State," the mere fact of non-resident ownership does not exempt property from state taxation; and that property, the product of a state, though intended for transportation to another state, is subject to taxation in common with the mass of property in the state until "actually started in the course of transportation to another state, or delivered to a carrier for such transportation," but such property is not, at any point, subject to state taxation based upon its intended, or actual, transportation to another state. In the Daniel Ball,2 Field, J., said, whenever a commodity has begun to move as an article of trade from one state to another, commerce in that commodity between the states has commenced." Bradley, J., in Coe v. Errol, quoted this dictum of Field J., and added, "but this movement does not begin until the article has been shipped, or started for transportation from one state to another. Until shipped, or started on its final journey out of the state, its exportation is a matter altogether in fieri, and not at all a fixed and certain thing."

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39. The rule on this subject is further illustrated by those cases which hold that a state cannot by taxation discriminate against either the natural products of, or the goods manufactured in, other states. Thus in Ward v. Maryland,* a statute of Maryland having required all traders resident within the state to take out licenses, and to pay therefor fees varying from $12 to $15, and all non-resident traders, as a prerequisite to their sale of any goods, wares, or merchandise whatsoever, other than 2 10 Wall. 565. 3 116 U. S. 528. 4 12 Wall. 418.

1 p. 525.

agricultural products of and articles manufactured in Maryland, to take out a license and to pay therefor annually a fee of $300, and Ward, a citizen and resident of New Jersey, having been indicted in a court of the state of Maryland and convicted of selling, without a license, goods manufactured in a state other than Maryland, the judgment was affirmed in the state court of last resort, and, on a writ of error, reversed in the Supreme Court, on the grounds that the license tax was, by reason of its discrimination against goods grown or manufactured in other states, an attempted regulation of interstate commerce, and as such void, and that it was also in contravention of the constitutional declaration, that "the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." Clifford, J., delivered the judgment of the court. Bradley, J., concurred; but held1 that the license fee would be equally void," although it imposed upon residents the same burden for selling goods by sample as is imposed on non-residents. Such a law would effectually prevent the manufacturers of the manufacturing states from selling their goods in other states unless they established commercial houses therein, or sold to resident merchants, who chose to send their orders. It is, in fact, a duty upon importation from one state to another, under the name of a tax."

Following in the line of Ward v. Maryland, state laws have been held void, requiring payment of a tax or license fee by vendors of merchandise "not the growth, produce, or manufacture" of the state, no tax or license fee being required of vendors of domestic merchandise; authorizing a municipality to impose on vessels laden with the products of other states a fee for

1 p. 432.

2 Welton v. Missouri, 91 U. S. 275; Webber v. Virginia, 103 U. S. 344.

3

their use of the public wharves, when vessels laden with the products of the state are permitted to use such wharves without charge;1 or requiring a "non-resident merchant, desiring to sell by sample in the state, to pay for a license to do that business a sum to be ascertained by the amount of his stock in trade in the state where he resides, and in which he has his principal place of business."2 In Walling v. Michigan, the facts were, that a statute of Michigan, enacted in 1875, having required payment of a license tax by every person making sale within the state of spirituous or malt liquors for account of persons not having their principal places of business within the state, there being no such requirement of agents of domestic dealers, and a statute of 1879, as amended by a statute of 1881, having taxed to a greater amount the manufacturers of or dealers in domestic liquors, and Walling having been convicted in a court of the state of Michigan under the statute of 1875 of selling without a license, spirituous liquors in the state of Michigan on behalf of a firm having its principal place of business in Chicago in the state of Illinois, and the judgment having been affirmed in the state court of last resort, he brought the record to the Supreme Court of the United States, where the judgment was reversed, on the ground that the statute of 1875, by its imposition of a tax on each selling agent of a foreign dealer, discriminated "against persons for selling goods brought into the state from other states or countries," and that as the statute of 1881 imposed a single tax only on the manufacturer or dealer, and did not tax his selling agents, "the tax im1 Guy v. Baltimore, 100 U. S. 434.

2 Corson v. Maryland, 120 U. S. 502. The statement as to the effect of the Maryland statute is quoted from the concurring judgment of Waite, C. J., at p. 506.

3 116 U. S. 446.

♦ Per Bradley, J., at p. 454.

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UNIVERSITY

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posed by the Act of 1875 is not imposed on the same class of persons as is the tax imposed by the Act of 1831," and the later statute, therefore, cannot operate to relieve the discrimination created by the earlier statute. In Machine Co. v. Gage,' the facts were, that the laws of Tennessee, as construed by the Supreme Court of that state, having levied a "tax upon all pedlars of sewing-machines, without regard to the place of growth or produce of material or manufacture," and an agent of the Howe Machine Co., of Bridgeport in the state of Connecticut, having made sales in Tennessee of sewing-machines manufactured by his company in Connecticut, and having paid the tax under protest, the company brought suit in a state court to recover back the amount of the tax, and judgment against the company in the state court of last resort was affirmed in the Supreme Court on the ground, as stated by Swayne, J.,3 that the law of the state made no discrimination. "It applies alike to sewing-machines manufactured in the state and out of it. . The state, putting all such machines upon the same footing with respect to the tax complained of, had an unquestionable right to impose the burden." Of course, if discrimination against the sale within a state of articles of non-domestic growth or manufacture be the test of the invalidity of a tax, it is not material that the mode of collecting the tax differ, if its amount be the same, on articles of domestic, and of foreign, produce and make; thus in Hinson v. Lott, it was held that there was no liscrimination in a statute requiring from vendors of liquor introduced from another state prepayment of a tax of fifty cents per gallon and imposing on manufacturers of domestic liquors a tax of the same

1 Per Bradley, J., at p. 459. 2 100 U. S. 676.

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amount per gallon, on returns made from time to time. The case of Robbins v. Shelby County Taxing District gives the sanction of the judgment of the court to the dictum of Bradley, J., in his concurring opinion in Ward v. Maryland, and in so doing establishes a principle very different from that on which the judgment in Machine Co. v. Gage was based. The facts in the Robbins case were, that a statute of Tennessee having required all drummers, etc., under a penalty to pay a license fee before selling goods in Shelby county, and Robbins, a drummer acting on behalf of a firm doing business in Cincinnati in the state of Ohio, having been convicted in a court of the state of Tennessee of selling goods without a license, in violation of the statute, and the state court of last resort having affirmed the judgment, the Supreme Court of the United States reversed the judgment, for the reasons, as stated by Bradley, J., that a state statute levying a tax or imposing any other restrictions "upon the citizens or inhabitants of other states, for selling, or secking to sell their goods in such state before they are introduced therein " is an attempted regulation of interstate commerce, and as such void. The ground of the decision, therefore, is that the license fee in question is not a tax upon goods brought from another state within the jurisdiction of the taxing state, and there subjected to taxation in common with the mass of property in that state, but it is a tax which stands as a barrier in the way of the manufacturer or merchant of another state, and hinders him in the introduction of his goods into the taxing state. In this view, it is no answer to say, as Waite, C. J., and Field

1 Nelson, J., dissented on the grounds stated in his dissenting judgment in Woodruff v. Parham, 8 Wall. 140.

2 120 U. S. 489.

3 12 Wall. 432.

4

p. 494.