Page images
PDF
EPUB

not afterwards complain that it is unconstitutional, because he has no interest affected or constitutional right: violated. His adversary alone has ground of complaint. Hansford v. Barbour, 3 A. K. Marsh. 515; Barnett v. Barbour, i Litt. 396; M'Kinney v. Carroll, 12 Pet. 66; S. C. 5 Mon. 96; Chitty v. Glenn, 3 Mon. 424; Willard v. Longstreet, 2 Doug. 172.

A sheriff who has acted under a statute can not set up its unconstitutionality. Willard v. Longstreet, 2 Doug. 172.

A debtor who has given a bond to stay execution can not, after the expiration of the stay, raise the objection that the law was unconstitutional. M'Kinney v. Carroll, 12 Pet. 66; S. C. 5 Mon. 96.

The sureties to an improvement bond have no right to complain that the law under which it was given is unconstitutional, for they are not affected by it. M'Kinney v. Carroll, 12 Pet. 66; S. C. 5 Mon. 96.

A person who is not a party to the contract can not question the validity of a law on the ground that it impairs the contract. Gilman v. Sheboygan, 2 Black, 510.

The party whose rights are invaded is the only one who can plead the nulliiy of a law impairing the obligation of contracts. The law is binding on third parties. New Orleans C. & N. Co. v. New Orleans, 12 La. Ann. 364; Gilman v. Sheboygan, 2 Black, 510.

A purchaser at a sale under an execution can not object to the sale on the ground that the act regulating the terms of the sale is unconstitutional, because it impairs the obligation of contracts. Rudd v. Schlatter, 1 Litt. 19.

2. No State shall, without the consent of the Congress, lay any imposts (a) 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 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 (6), 'keep troops or ships of war in time of peace, enter into any agreement (C) 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.

Duties.

(a) An impost or duty on imports is a custom or tax levied on articles brought into a country, and is most usually secured before the importer is allowed to exercise his rights of ownership over them, because evasions of the law can be prevented more certainly by executing it while the articles are in its custody. It would not, however, be less an impost or duty on the articles if it were levied on them after they were landed. The policy and consequent practice of levying or securing the duty before or on entering the port does not limit the power to that state of things, nor consequently the prohibition, unless the true meaning of the clause so confines it. Imports are things imported. They are the articles themselves which are brought into the country. A duty on imports, then, is not merely a duty on the act of importation, but is a duty on the thing imported. Brown v. State, 12 Wheat. 419; Bode v. State, 7 Gill, 326; Hinson v. Lott, 8 Wall. 128; S. C. 40 Ala. 123; vide State v. Sluby, 2 H. & J. 480.

There is no difference in principle between a power to prohibit the sale of an article and a power to prohibit its introduction into the country. The one would be a necessary consequence of the other. No goods would be imported if none could be sold. No object of any description can be accomplished by laying a duty on importation, which may not be accomplished with equal certainty by laying a duty on the thing imported. It is obvious that the same power which imposes a light duty can impose a very heavy one, one which amounts to a prohibition. Brown v. State, 12

Wheat. 419.

1

A duty on imports is not, taken in its literal sense, confined to a duty levied while the article is entering the country, but extends to a duty levied after it has entered the country. Brown v. State, 12 Wheat. 419.

When the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State ; but while remaining the property of the importer in his warehouse in the original form or package in which it was imported, a tax upon it is a duty on imports. Brown v. State, 12 Wheat. 419; Wynne v. Wright, 4 Dev. & Bat. 19; License Cases, 5 How. 504; S. C. 13 N. H. 536; State v. Charleston, 10 Rich. 240 ; State v. Shapleigh, 27 Mo. 344 ; State v. North, 27 Mo. 464; Low v. Austin, 13

Wall. 29.

This rule seems to have been suggested from that familiar principle, that if one mingle his money with another's so that the proportion can not be distinguished in the mass, the other shall have the whole. In some States and respecting some articles, this rule might operate with justness and propriety, but by far the greater proportion of foreign commodities, and those from other States, are never mixed with the mass of property, so as to lose their identity. Raguet v. Wade, 4 Ohio, 107.

If an importer breaks up his packages and travels with them as an itinerant peddler, or applies them to his own private use, they become incorporated with the general mass of property, and are liable to taxation. Brown v. State, 12 Wheat. 419.

After imported goods have become incorporated and mixed up with the mass of property in the country, a tax may constitutionally be imposed upon them, although they are taxed by the name of goods imported, or not of the production of the State, for a State may exercise its discretion in selecting the objects of taxation amongst those which are subject to taxation. Wynne v. Wright, 4 Dev. & Bat. 19; Biddle v. Comm. 13 S. & R. 405; Cowles v. Brittain, 2 Hawks, 204; Cummings v. Savannah, R. M. Charlt. 26; People v. Coleman, 4 Cal. 46; Tracey v. State, 3 Mo. 3; contra, State v. North, 27 Mo. 464.

An import ceases in the constitutional sense to be an import, the moment the importer becomes a vender, and sells the article. In the hands of the retailer or distributor, it is an article of the internal trade and commerce of the State. Ştate v. Peckham, 3 R. I. 289.

After the imported goods have become incorporated with the general mass of property in the State, the State in laying taxes may discriminate against them in favor of domestic productions, and impose a higher tax on the former. Davis v. Dashiel, Phillips, 114.

If a State singles out imports as a special object for any impost or duty, it is unlawful, whether the imported goods remain with the original consignee or pass through the hands of any number of purchasers. People v. Moring, 47 Barb. 642 ; S. C. 3 Abb. App. 539.

While goods retain their character as imports, a tax upon them in any shape by a State, is within the constitutional prohibition, although the tax is the same as on any other property in the State. Low v. Austin, 13

Wall. 29.

The term “import," is used in the fiscal sense in the Constitution, and in that acceptation is wholly inapplicable to the interchange of commodities among the States, but is restricted in its meaning to such commodities only as are imported from abroad, introduced into the country through its several ports of entry, and are subject to the the taxing power of the Federal Government. A State tax on articles brought from another State, is not a tax on imports. License Cases, 5 How. 504; S. C. 13 N. H. 536; State v. Pinckney, 10 Rich. 474 ; State v. Charleston, 10 Rich. 240; Hinson v. Lott, 8 Wall. 148; S. C. 40 Ala. 123 ; Woodruff v. Parham, 41 Ala. 334 ; S. C. 8 Wall. 123; State Tax on Railway Gross Receipts, 15 Wall. 284; Harrison v. Mayor, 11 Miss. 581 ; Board v. Pleasants, 23 La. Ann. 349.

The power of imposing or levying duties on imports is a branch of the taxing power. This prohibition is an exception from the acknowledged power of the States to levy taxes. Gibbons v. Ogden, 9 Wheat. I; S. C. 17 Johns. 488; 4 Johns. Ch. 150.

The term “imports," means not only the act of importation, but the articles imported. Wynne v. Wright, 4 Dev. & Bat. 19.

If Congress has not established a port of entry within a State, for the introduction of foreign imports, the State can not pass an act that would be repugnant to this provision of the Constitution. Beall v. State, 4 Blackf. 107.

The prohibition is general, and not confined to a particular mode. A tax on the sale of an article imported only for sale is a tax on the article itself. A tax on the occupation of an importer is a tax on importation. It must add to the price of the article, and be paid by the consumer or by the importer himself in like manner as a direct duty on the article itself. This the State has no right to do. State v. North, 27 Mo. 464; Brown v. State, 12 Wheat. 419; License Cases, 5 How. 504; S. C. 13 N. H. 536; vide Biddle v. Comm. 13 S. & R. 405.

Pilot fees or penalties are not embraced within the words imposts or duties on imports, exports or tonnage. This provision was intended to operate upon subjects actually existing, and well understood when the Constitution was formed. Imposts and duties on imports, exports and tonnage were then known to the commerce of a civilized world as distinct from fees and charges for pilotage, and from the penalties by which commercial States enforced their pilot laws, as they were from charges for wharfage or towage or any other local port charges for services rendered to vessels or cargoes. It can not be denied that a tonnage duty or an impost on imports or exports may be levied under the name of pilot dues or penalties, and it is the thing and not the name which is to be considered. Cooley 7. Philadelphia, 12 How. 299.

A State may impose a tax upon its citizens in proportion to the amount they are respectively worth, and the importing merchant is liable to this assessment like any other citizen, and is chargeable according to the amount of his property, whether it consist of money engaged in trade or of imported goods which he proposes to sell, or any other property of which he is owner. License Cases, 5 How. 504; S. C. 13 N. H. 536; State v. Pinckney, 10 Rich. 474.

By payment of the duty the importer purchases the right to dispose of his merchandise as well as bring it into the country. Brown v. State, 12 Wheat. 419; Hinson v. Lott, 8 Wall. 148; S. C. 40 Ala. 123.

A tax on water craft in which goods are sold by retail is valid, although the goods are brought from another State by a citizen of that State. When such a citizen comes into the State and makes sales, there is no reason why

а

he should be exempted from the operation of its laws. Harrison v. Mayor, 1 Miss. 581.

A State may impose a penalty upon those who sell articles which are not of the product of the United States without a license. Beall v. State, 4 Blackf. 107; Raguet v. Wade, 4 Ohio, 107; People v. Coleman, 4 Cal. 46.

A statute requiring a license of retail dealers of spirituous liquors is constitutional. The regulation and superintendence of the houses and places where spirituous liquors are sold is an important subject of internal police, and is within the jurisdiction of the State government. State v. Peckham, 3 R. I. 289; Perdue v. Ellis, 18 Geo. 586; State v: Wheeler, 25 Conn. 290 ; Comm. v. Kimball, 41 Mass. 359; Ingersoll v. Skinner, I Denio, 540; Jones v. People, 14 III. 196; Smith v. People, i Parker Cr. Cas. 583; Comm. v. Clapp, 71 Mass. 97 ; License Cases, 5 How. 504; S. C. 13 N. H. 536; City v. Ahrens, 4 Strobh. 241 ; State v. Moore, 14 N. H. 451; Keller v. State, 11 Md. 525; Santo v. State, 2 Iowa, 165; State v. Donehey, 8 Iowa, 396.

A tax on legacies when the legatee is neither a citizen of the United States nor domiciled in that State is valid. It has no concern with commerce or with imports or.exports. The mere fact that the owner intends to convert his property into money and send it abroad, does not relieve it from taxation Mager v. Grima, 8 How. 490.

A tax on auction sales of imported goods is a duty on imports, and invalid. People v. Moring, 3 Abb. App. 539; S. C. 47 Barb. 642.

A tax or duty on a bill of lading, although differing in form from a duty on the article shipped, is in substance the same thing; for a bill of lading, or some written instrument of the same import is necessarily always associated with every shipment of articles of commerce from the ports of one country to those of another. A tax on a bill of lading for articles exported is therefore void, as a tax on exports. Almy v. People, 24 How. 169; Brumagim v. Tillinghast, 18 Cal. 265.

A State may tax capital, although it is continuously invested in cotton purchased for exportation. People v. Tax Commissioner, 17 N. Y. Supr. 255.

A State law requiring hawkers and peddlers to take out a license is not a duty on imports. Comm. v. Ober, 66 Mass. 493.

A provision in the charter of a railroad corporation that all tonnage carried on the railroad shall be subject to a certain toll or duty per mile, is not a duty on imports or exports. Penn. R. R. Co. v. Comm. 3 Grant, 128.

A State law imposing a transit duty on foreign corporations for all goods and persons carried or transported in the State, is not a tax on imports or exports. State v. Del. L. & W. R. R. Co. 30 N. J. 473; S. C. 31 N. J. 531.

« PreviousContinue »