Crow v. State

Birch, J.,

delivered the opinion of the court.

It is deemed unnecessary to allude further to the statement which was agreed upon as furnishing the basis for our decision in this case, than to remark, that the point which it was mainly intended to present for our consideration, was and is, whether the act of the 12th March, 1849, in connexion with the act of the 25th March, 1845, “to license and tax merchants,” is authorized under the constitution of the United States and this State.

The circumstances under which a necessarily hasty, and, therefore, “concededly incomplete” opinion was written and rendered in the case at the last term of this court, were deemed to be such as, if not magnanimously to exempt it from all criticisms amongst those to whom the facts alluded to were known, would at least have suggested a degree of forbearant fairness in the discussion to which it gave rise. That there might be presented to the legislative department of the government then soon to assemble, the mere general considerations upon which was then, as there is yet, rested the conviction that the legislation in question was interdicted by the higher guaranty of the constitution, was the respectful purpose which was entertained, and constituted the reason which was entertained, and constituted the reason which preponderated, to induce us at that term, and under the circumstances referred to, to render an opinion at all.

The legislature having since held its session without passing any enactment upon the subject, the inference is, perhaps, but a legitimate one, that at least a majority of its members intelligently comprehend the scope and effect of the opinion and judgment alluded to, and satisfied themselves that a probable adherence to it would not reduce the aggregate revenue of the State below the requirements to which they had subjected the treasury ; for, in addition to the fact that the estimate of the Auditor for the two succeeding years assumes a surplus for the treasury several times greater than an adherence to that decision could possibly cut off, it may have been also deemed probable enough that ■a very short period would intervene, after such a shackle as is complained of was removed from our exterior commerce, before the whole sale business of our otherwise attractive commercial metropolis, exempted thereby from the discouraging burthen to which it is at present subjected, would be able so to commend itself to the intelligent retailers- and customers in.the country, as to result in at least doubling the amount *255 of their present importations and sales, thereby supplying in this city alone the basis of a constitutional tax,which would result in even a greater aggregate to the treasury than the oppressive and unconstitutional one of which the defendants here complain. In other words, that there would probably soon be settled here at least twice the present number of wholesale merchants, who would “receive,” because they could then sell to the country merchants twice the quantity of goods they now do, whereby the ad valorem or ordinary tax upon them would be paid into our own treasury (through the wholesalers) instead of being paid,'as now, into the treasuries of the eastern States and cities, through t ose of our interior merchants whose customers compel them to furnish them with goods which have not been doubly or even trebly taxed between Philadelphia and the country stores. In this manner, it need scarcely be argued that custom is not only driven by,and from our own emporium, but taxes driven from our own treasury — the argument seeming plain and conclusive enough, and one upon which both merchants and their customers would rationally and readily act, namely: that where goods are less heavily pressed upon by the taxing power than the wholesalers here are, they can be purchased cheaper, and of course brought home and sold cheaper. Be this, however, as it may, the fault, if any, of leaving the treasury deficient, and ourselves (with others) thereby unprovided for, could not be ours — such considerations being addressed to legislative and not judicial provision or discretion.

Proceeding, therefore, rather to restate and to amplify our previous positions arid conclusions, than to write or deliver a new opinion, we commence by repeating, that “by the 19th subdivision of the 13th article of our State constitution, it is declared that all property subject to taxation in this State shall be taxed in proportion to its value ; and it would seem that whether reference be had to the meaning most naturally and directly imported and conveyed by the sentence itself, or (in connexion) to the cotemporaneons concurrences which probably contributed to suggest and to shape it, onr language is perhaps inadequate to furnish a combination of words, as a text, which would less ambiguously denote and enforce an observance of the great political maxim upon which they were doubtless predicated.”

“Concerning the mere grammatical signification of the sentence, there, can probably be no disagreement of opinion ; and when it is considered in connexion with the cotemporary fact, that under the terms of our admission into the Union, the State was, on the same day the constitution was adopted, binding itself by ordinance to forbear to tax certain descriptions of property, and that in virtue of the residue of its sovereignty *256 in that respect, “all” other property was “subject to taxation,” the sentence would seem almost historically, no less than verbally, to have been predicated upon the design whicli was entertained to repudiate and repress all favoritism or oppression, in the nature of class legislation; or otherwise, by ordaining that in Missouri, as in other States, a general pío rata assessment and’taxation — as simple and comparatively unexpensive in its enactment and execution, as it was unvaryingly just and equitable in its design and in its consequences — should be interposed as the ii reversible rule of action and of right in the State they were founding.”

“Although writing here, instead of an essay upon political economy, a mere and more rigid judicial opinion, it may not, perhaps, be wholly impermissible so far to anticipate the legitimate criticism to which this virtual denial of the discretion of the legislature may subject a coordinate department of the government, as to remark that it was doubtless present to the reflection and the forecast of the statesmen who founded our system, that unless the temper and the disposition of those for whom they were acting in that day and in this, should become exempt in the future which was before them from the infirmities implied in the record of all the past, a discretion in the majority to tax according to their judgment or their will, would find its periodical possible, if not probable denoument, in the comparative (perhaps specious) exemptions of the many of the strong, at the expense of the weaker class of the community. It was doubtless, therefore, deemed and acted upon, that in order to avoid the despotism of even an unchecked majority of men of like passions with our own, a subjection and adherence to the constitutional requision we are considering — in theory and in practice in spirit and in truth — in the legislation which is direct, and in that which is indirect, constituted then, as it will ever constitute, the only reliable guaranty that “the burdens and the blessings of government, like the dews of Heaven, will fall upon all alike.”

“That such a consummation is only compassed, when each and every citizen is subjected to the same specific tax for the personal protection afforded him by the government and the laws, and for the protection afforded to his property, (let it come from whence it may,) to a tax in proportion to its value, needs but rational reflection to beget rational concession — and that the exact reverse ensues, whenever the laws are so iiamed as that the expense of protecting the property of one citizen, is raised by the imposition of taxes, either exclusively, or disproportionately, upon the property of another, need not, of course, be further demonstrated. The one is deemed to be the unvarying equity and justice *257 of the constitution — the other the varying and alternate injustice of interest, design or misapprehension.

Such being the estimate we have formed, not only of the terms of the constitutional requisition itself, but of the great and immutable principle which constitutes its basis and defence, it is to our minds insufficient to answer, that the discriminating tax complained of in the present instance, was levied through the machinery of a discriminating license, instead of the more direct manner which it sought to avoid. If it be repugnant to the constitution in the one sense, it cannot be conformable to its spirit or design in the other — so that we are left without either the offipial alternative of the moral power to uphold what we can but regard as at least an unauthorized evasion of the constitutional guaranty in question. And whilst but little argument would seem necessary to demonstrate that even the imaginary success of such devices almost invariably contemplates and compasses even a more onerous and complicated tax, of multiplied inequality, upon the people at large, than if levied upon them directly and simply — in plain terms, for a plain purpose, and once for all — it is sufficient for the purposes of this opinion, and for the judgment which must be consequent upon it, that the object being the same, and the effect the same, the decision we are called to pronounce cannot vary in the one case from what the very terms of the law would have imposed in the other.”

What, indeed, is the law of 1849, when considered in connexion with the 10th section of the act of 1845, (which it essays to re-enact and retain,) except it be at least a double ad valorem tax upon the property of merchants and grocers ? The provisions of the first section of the act of ’49 are, that “in lieu of the taxes assessed upon merchants and grocers, licensed by the existing law, there shall be levied and collected upon every merchant’s and grocer’s license, a tax at the following rate, to wit: Where the amount off merchandize received for sale by any merchant or grocer shall amount in value to as much as five hundred dollars or less, the tax shall be one dollar ; where the amount of merchandize so received shall amount in value to more than five hundred dollars and not exceed six hundred dollars, the tax shall be one dollar and twenty cents; where the amount of merchandize so received shall amount in value to more than six hundred dollars, and not exceed seven hundred dollars, the tax shall be one dollar and forty cents; and so on in the same proportion, increasing the tax at the rate of 20 cents for every additional one hundred dollars’ worth of merchandize so received.”

Sec. 2. The provisions of the preceding section shall be applicable to all merchants, commission merchants and grocers, whether trading as *258 wholesale or retail dealers : Provided, that nothing in this act shall be so construed as to repeal the 10th section of an act entitled “an act to license and tax merchants,” approved March 25th, 1845, so far as the same relates to the collection of an ad valorem tax upon all merchandise offered for sale as aforesaid.”

The 10th section of the act of 1845, referring to the previous section, (8,) which may be called the discriminating or license section of that year, and to sec. 5 of the same act which exempts all goods which are of the “growth, produce or manufacture of this State,” is in these words :

“The collector shall collect as an ad valorem tax, such a per cent, upon all merchandize offered for sale as aforesaid, (except such as maybe offered in the packages, boxes, bales, barrels, or crates, in which they were imported, or in which they may have remained without being broken,) such an amount as may, for the time being, be paid as a tax upon real estate.”

That section therefore continuing in force, three sections thus quoted in connexion with the fifth section, which discriminates in favor of our own goods, and the general law of the 16th of February, 1847, which levies upon real estate and other general property one-fifth of one per centum on its “value,” constitute the existing enactments relating to the property or business of the defendants, and should therefore be considered in pari materia. It will be seen by their context, that they not only make the aggregate unequal tax, for the non-payment of which the defendants are indicted, to depend by their very terms upon the “value” of the merchantable “property” received by them, but that notwithstanding the sections are differently worded, the tax or per centum is substantially the same under each, being in short, under both sections, twenty cents on every hundred dollars’ worth, and consequently producing an aggregate exactly double that which is levied upon the general property of the State. In other words, the property which comes amongst us from other States is, in any view of the case, taxed twice as much as similar property in our own State is taxed.

It is perhaps not unwmrthy of remark in this connexion, that the Legislature itself seems not to have been exempt from the apprehension, that the extra tax they were thus levying upon one class of the community, or more strictly speaking, upon one description of “property,” to be paid in the end by those who consumed or used it, was at least of doubtful sanction under the constitutional guaranty we have quoted. Why, otherwise, resort to two sections cf law, each (o raise one-fifth of one per cent on the value of a merchant’s goods, instead of enacting openly and at once, in a single section, that the tax to be charged upon *259 his license, should be two-fifths of one per centum? No other reason is perceived for such an apparent redundancy of sections and provisos, except that it was not intended to peril the collection of a single ad valorem, or constitutional tax, (which it was doubtless assumed would be conceded in reference to the scope or requirements of one or the ¿other of the sections) by so combining the double ad valorem we are considering in a single section as that the whole must stand or fall together. Hence most probably resulted what we can but regard as the unconstitutional proviso to the act of 1849, by which the attempt is made to keep up the additional ad valorem established by the 10th section of the act of 1845, notwithstanding the object of the subsequent act of 1849 seemed to be to establish a general ad valorem system, “in lieu of the taxes assessed upon merchants and grocers” by the various laws then existing. It is perhaps fortunate, however, that the legislation upon the subject is as it is — presenting thereby to the court which disconcurs in the constitutional competency of thd legislature to assess upon one description of property, a tax or rate differing from that which is assessed upon all other descriptions of property, the alternative or option of rejecting that section which will least impair the general revenue to which the State is legitimately entitled, and also least disturb the harmony and simplicity of the system, as their decision may leave it.

It happens to the author of this opinion to know that the power to discriminate (as here complained of) between different descriptions of property “subject to taxation,” has long been denied or doubled by intelligent members of both branches of the legislature, without regard to avocation or to party; andas the question involved is conceded throughout the argument to be as much or more a political than a merely legal one, no impropriety is perceived either in thus alluding to the fact, or in briefly essaying such additional considerations as may be supposed to have been present to the mind of the convention, when adopting what is conceived to he by far the most important line in the constitution. Where, indeed, a sentence of this character is held to be open to construction at all, as the counsel for the State holds this to be, it becomes comparatively indispensable to its satisfactory solution, to summon in review the various considerations, historical and otherwise, which may be supposed to have legitimately borne upon or influenced its adoption, and thus educe, as satisfactorily as may be, the key to its proper construction.

It must be borne in mind, however, that we are discussing the question before us as one involving the power, and not the wisdom or virtue of the legislature. If it had been conceded when our constitution was *260 under discussion, or could be conceded now, that the legislative^ department of the government would be always exempt from the infirmj|ty; of our common nature, there .would not then have been, nor would there now be, a necessity for any constitution at all. It need not, however, be more specifically stated, that constitutions are founded in distrust of the very infirmities alluded to, and as constituting the permanent reliance of all men — the weaker portion, especially — that under all circumstances, and at all times, there are. limits and guaranties which even a majority cannot transcend or impair. Repeating, therefore, that this question can only properly be discussed as one of political or constitutional power, it has seemed to us as. b^ing but^oo readily susceptible of demonstration, that with a concession of the authority in question here, there would be no limit to the ramification or exercise of powers so exactly analagous as to have been in fact claimed and insisted upon in the course of this discussion; and that, instead of taxing “all property” equally, or “in proportion to its value,” the system of licensing particular avocations or professions, and then taxing them according to the interests or the prejudices of a temporary majority of the legislature would cause the constitutional guaranty we have been considering to be remembered for little else than to be contemned and evaded.

What, for instance, would restrain an interested and unchecked majority from enacting that no citizen should purchase, or sell, or hire, or even own a slave, without obtaining therefor an annual, or (as in the case before us) a semi-annual license — paying for it (and not for the property, as the fallacy runs,) such sum as the legislative wisdom or virtue may enact? What would prevent an enactment that no man should work a mine, cultivate more than a given quantity of land in hemp or tobacco, or keep more than a certain number or description of horses or cattle, without “a license therefor,” to be taxed and paid for, in either case or in all, according to the predominating interest, or the coalesced and combined interests and prejudices of an accidental and unchecked majority of the legislature? It is deemed sufficient to suggest, without amplifying or elaborating these and kindred abuses, in order to awaken such enquiry and reflection as we are fain to believe must resistlessly beget concurrence in the conclusion, that the constitutional guaranty in question is not only a farce, but an absolute fraud, if it be liable to such palpable every-day evasions.

But the very able and ingenious counsel who was employed by tiie county, and who presented in its petition for a rehearing of this cause the reasons upon which it was respectfully holden, that the restricted *261 construction denoted by our previous opinion was too literal, assumes not only in his argument, but in the example he has presented, that the guaranty in question simply restricts the legislature to an ad valorem instead of a specific tax, upon such property as it may “subject to taxa-ation.” And the proposition is illustrated by assuming (for example) that it was and is a simple denial of the legislative authority to tax a pleasure carriage worth a hundred dollars as much as one worth a thousand dollars. However disagreeing with this 'construction, as: rendering the object of too little practical utility to comport either with the general and' solemn terms of the sentence itself, or to justify for it a place amongst the highest and most radical guaranties contained in ’our “Bill of Rights,” yet even this, as it seems to us, concedes too much for the argument here — it having been already demonstrated that under the power assumed to license whatever the legislature sees fit, carriages (or of course anything else) worth a given suiA'!might be taxed a given per cent, by thát process, whilst others worth inoré or'less' might be either assessed and 'taxed only in the usual way1, or exempted altogether. Adopting, therefore, at least for the present, the single illustration of the learned counsel, it will of itself, perhaps, be sufficient to suggest and to demonstrate the general proposition upon whic'h we rely, which is, that the distinction between the tax on thé property or thing owned, and on the person or business of the ownef^mereiy'bécause he owns it, should have but little influence in the consideration of a' great and radical proposition like the present one, in which the community and the court should look to the substance of the thing done, instead of the mere name under which it is done. II 'otherwise, what we have been wont to regard as the most vital principle'of the constitution, may be contemptuously overriden by a mere form !

It is deemed unnecessary here to enter at large into the discussion of the kindred or resulting proposition, which has also been necessarily maintained in this discussion, being an affirmance of the po ver of the legislature may raise by direct taxation all the revenue of the State from a single species of property — land or negroes for example. That question is not so strictly before us as to require an elaborate exposition of the reasons upon which we place not only our denial of any such constitutional authority, but its virtual inhibition by both the letter and the spirit of the constitution. For the present, therefore, (at least in this connexion,) it will suffice to repeat that the sentence we have quoted is perhaps as expressive and imperative as language could render it — the words “may” and “shall” with their negatives, being conceded to bé *262 the proper auxiliaries of the enacting verb, and that where simply the latter is apopted, appropriately, (as in this cáse) to join the legal subject to the legal action, there can be no pretence of ambiguity, and hence no doubt or uncertainty, respecting either the purpose intended or the duty enjoined. We but reiterate, therefore, before perhaps resuming the consideration of the proposition in another connexion, that the emphatic words of the constitution are, that “all property subject to taxation shall., be taxed in proportion to its value,” and that at the time this fundamental and unchanging basis for raising the revenue of the State was agreed upon and ratified, every description of property not exempted by the compact of the same date was thus constitutionally “subject” to equal taxation. The term “property,” wre need scarcely remark, has a most extensive signification, consisting, according to its legal definition, “in the free use, enjoyment and disposal by a person of all his acquisitions, without any control or dimunition, save only by the law of the land.” What is that “law of the land” in this State, except it be the very constitutional guaranty under consideration, namely — that a merchant’s “acquisitions” or “property” (as in the definition just quoted) shall be taxed only as the acquisitions or property of another person ; or in the very words of the supreme “law of the land,” “in proportion to its value ?” and what is the tax on the sale of an article, acquired or purchased expressly for sale, but a tax on the article itself?”

If, therefore, under words thus imperative, and grammatically adapted to imply or signify an ever present or future present tense as to the taxation of all property” not exempted as above, the legislature may nevertheless elect what descriptions of property it will from time to time “subject” to the burdens of the treasury, (whether directly or indirectly) the plain provision of the constitution, so seemingly to the contrary, both in its letter and in the great public and private considerations upon which it is supposed to have been founded, is worth even less than the line it occupies upon the page before us.

Whilst it will not. be controverted that if the convention had remained silent as to any particular mode or basis of raising a revenue, there would have resulted to the legislature, in this State as in others, where no particular plan has been pointed out, the necessarily implied authority to levy and collect a sum sufficient to carry forward the legitimate operations of the government, in a manner conformable to their discretion alone, the case is conceived to be exactly the reverse where a basis or method has been distinctly intimated ; for thereby, according to the general rule of interpreting such delegations of authority or of duty the imperative specification of that particular method of executing it is *263 to be regarded as the virtual exclusion of all others. "Expresszo nni~ us~ e~clasio eat alierius."

Acting, doubtless, upon this undeniable and only safe principle of construction, it is perceived by reference to the constitution of the neigh~ boring State of Arkansas, where the convention inserted a general provision upon the subject of taxation, substantially conforming to our own, that it was deemed necessary, in order to confer the additional power of taxing merchants and others in that State, in the manner they are taxed by existing enactments here, to insert in their constitution an express authority in these words: "The general assembly shall have power t~ tax merchants, hawkers, pedlars and privileges, in such manner as may from time to time be prescribed by law."

But for the specific authority thus quoted, which may n)t inaptly be called a proviso to the genera! guaranty or plan of raising the revenue in that State, it was doubtless foreseen that it would have been as incompetent for its legislature to enact such a law as the one we are con. sidering, as (without such proviso) it is deemed incompetent for the legislature of this State to do-and why? Not that the right of the State was overshadowed or swallowed up by any pre-existing or para~ mount federal authority, but because the people of the. States themselves in their own organic law, had intelligently and wisely withheld * the power from their agents or government, by ordaining a different and all-embracing permanent rule as the least erring criterion of right, and comprehensible alike to all its citizens, whose property is taxed precisely in the ratio it protected it. Such a rule, it was doubtless foreseen, had to be but simply adhered to, in order to repress the biennial clashings and contests which spring up from the rivalries' and the prejudices of different legislative interests-reducing thus its entire duty respecting *264 the revenue into a simple revision of the arithmetical calculations of the Auditor, based upon the official statistics of the probable amount of “all property subject to taxation” on the one hand, and the like probable requirements of the reasury upon the other.

The section or line we are considering' had therefore the additional reason to commend its adoption by the convention, that an adherence to its injunctions would absolutely save to the treasury, in the repression of days, or sometimes even weeks, of wrangling legislation, as much or more money than would probably be produced by any law which sought to evade or avoid it. We desire-, therefore, that it be reimpressed and and remembered in this connexion, that'the doctrine of “State rights” with which the question we are considering is sometimes unintelligently confused ahd confoundedpreiüainá'wholly untouched, although notun-considered, ih the opinion heretofore,'and now -again rendered. The question théh and now decided is, not whether the State has directly or indirectly relinquished this alleged “right” to the federal government but did her p-ople virtually, o'r'not, prohibit the exercise of such apow-¿V by their own constitution — for their own security — preserving it thereby amongst the great mass of powers and privileges not delegated to her government, but withheld and retained by her citizens, of whom the defendants and men of their class comprise a portion or part.

It is not, perhaps, wholly unnecessary in this connexion to endeavor to attain to exact, and hence correct, ideas of a few general terms in use amongst us, but having different significations, in different countries, or under different forms of government, and concerning which indefinite or incorrect impressions may come to prevail, by even as simple a process as the reading of a single book. Thus, it is held by Blackstone, an eminent British commentator, that “ sovereignty and legislature are convertible terms,” and that “one cannot exist without the other.” The idea, therefore, with those, whether in the legal profession, or out of it, who undiscriminatingly examine and imbibe alone the views of this advocate of the unchecked authority of Parliament, would, perhaps, almost, of course, be that the State of Missouri was not “sovereign” unless her legislature was sovereign ; and there might, naturally enough, spring up with such an one a consequential bias in favor of what be supposed to be the implicated “sovereignty of his State” in her relation to the government or authority of the United States. Mr. Justice Story however, an equally accomplished American commentator, makes the matter sufficiently clear under our constitutions or forms of government, by holding that “in every limited government the power of legislation i$, *265 or at least may be, limited at the will of the State, and therefore the legislature is not, in an absolute sense, sovereign.” The learned commentator yet further and still more perspicuously elucidates the difference between the sovereignty of the people composing a State, and the sovereignty or authority of their mere government, and the partition of its powers, as follows : “But there is a more limited sense, in which the word [“State”] is often used, where it expresses merely the positive or actual organization of the legislative, executive, or judicial powers.— Thus, the actual government of a State is frequently designated by the name of the State. We say the State has power to do this or that; the State has passed a law, or prohibited an act, meaning no more than that the proper functionaries, organized for that purpose, have power to do the act, or have passed the law, or prohibited the particular action. The sovereignty of a nation or State, considered with reference to its association, may be absolute and uncontrollable in all respects, except the limitations which it chooses to impose upon itself. But the sovereignty of the government, organized within the State, may be of a very limited nature. It may extend to few or to many objects. It may be unlimited as to some ; it may be restricted as tc others. To the extent of the power given the government may be sovereign, and its acts may be deemed the sovereign acts of the State. Nay, the State — by which we mean the people composing the State — may divide its sovereign powers among various functionaries, and each, in the limited sense, would be sovereign in respect to the powers confided to each, and dependent in all other cases. * * * The residuary sovereignty of each State, not granted to any of its public functionaries, is in the people of the State.” Book 2, chap. 1, sec. 208.)

The question, we repeat, therefore, when considered in reference to the rule of interpretation previously alluded to, and which of course excludes as “authority” the adjudications of other States where the power is either expressly conferred, or necessarily implied for what may be termed the silent reasons in this connexion before adverted to_ such a question, we respectfully reiterate, appears to us to admit but a single answer, and that is, that the legislature is not sovereign in the respect here claimed for it, because the people of the State have chosen that it should not be. On the contrary, in the language we have quoted and adopted, the power is yet “in the people of the State,” and will "remain there until they see fit either to amend their constitution or provide for a different expositiou of it.

It results from these premises, that whilst in other countries the privileges or prerogatives to which the advocates of this measure *266 late it here, are either extorted or otherwise proceed from the government or sovereign, it is the distinguishing boast of American institutions, that the people who uphold them are their own free agents, so far at least as not to be governed a hair beyond the line that was agreed upon by their fathers, and written down and signed in their constitutions. Whilst, therefore, it may be, as it is, a proud and noble boast in other States, that a majority of the people, in this respect, and through their agents, govern themselves, it is deemed to be a prouder and yet more noble and secure one to a Missourian, that the people here have already permanently done so, whereby, in respect to that most important of all other considerations — namely, the power to tax him — he is beyond the reach or the possibility of injustice or of wrong, even by a temporary majority of “men of like passions with his own.” In other words, American governments are precisely what their constitutions make them — no more — from which the inference is but naturally and readily deducible, that whilst in respect to the federal government all the States are equal, the right, or rather the authority conferred by the people upon the government of one State, may materially exceed those conferred by another people upon the government of another State. The constitutions we have thus spoken of being therefore but the political articles of agreement or association, by which the people of each State (themselves, alone, originally sovereign) agree to entrust certain powers and duties to certain designated agents, in order to carry on the limited sovereignty or government they have created, may it not be deferentially submitted, that if these constitutions were acted upon and administered in the spirit of fairness and candor in which they were most probably adopted, there would result but little comparative disagreement or strife, and even less complication.or mystery, either in our policy or our laws? The fact, however, has become alike historical and proverbial, that like the mere private contracts or agreements amongst men, no sooner are they ratified and consummated, than the parties to them, each looking in the direction of his own prejudices, or his own supposed interests, seeks to establish, by degrees, such a practical construction of them, as best to subserve his own present or ulterior designs. If successful in such purposes, and they are for a period acquiesced in, it is of course not difficult to imagine either the time or tlie circumstances, when the magistrate or the citizen will be considered a bold one» if not indeed denounced as himself an innovator, who attempts to construe the constitution either by its own provisions, or by summoning’, to his aid the probable cotemporary reasons upon which it was predicated,. instead of adopting the constructive interpolations *267 to which it has been thus subjected. Is it, indeed, assuming too much to suppose, that we are not wholly exempt from that condition in reference to the great question we are considering to-day — -it being seen by reference to the first act upon the subject, which passed on the 12th of December, 1820; that the system which has so grown upon us as to be deemed longer insupportable, commenced with little, if any thing, more than varying the mere form of levying the usual or probable ad valorem tax of the constitution.

We are not unaware, however, that it is the main argument in this case, that it is the “privilege” or the “occupation” of the merchant which is thus taxed, and which may be taxed, ad libitum, according to the mere discretion of the legislature; and as it is not improbable that the illegitimate latitude of signification which that term has almost imperceptibly assumed, even amongst intelligent and otherwise discriminating men, may have produced, in some measure at least, the diversity of opinion which exists in reference to the question we are considering, it becomes our duty to somewhat examine it. It is therefore in no disrespectful or assuming spirit that we deem it proper to premise, that the most earnest and solicitous investigation which it has been our occasional duty to bestow upon questions analagous to the present one, has left us without resourse or escape from the conclusion, that the judicial, no less than other departments of human government, yielding themselves, at times, either sluggishly or imperceptibly to the miscalled analogies of what are hence mis-termed “authorities” — mistaken, or deceptive, because perhaps rendered under political systems essentially distinguishable from their own — have laid the foundation for those subsequent radical errors of interpretation or construction, which can alone be arrested and corrected (if at all) by a respectful yet self-relying recurrence to great original principles, as constituting perhaps the only anchorage longer held forth for the rescue and restoration of the very system itself, as ordained by their fathers.

We have perhaps thus sufficiently denoted or suggested, that in order to render a rational or common sense exposition of what constitutes a “privilege” in this State, where the powers withheld from the government are reserved to the people at large, it is not necessary to encumber either the argument or the illustration with definitions or examples drawn from England, where, by the theory of the common law, what are there termed privileges, liberties or franchises, sprang from, and in many instances returned to' the crown. As little will it be necessary here to repeat the international signification of the term “license,” or the reasons upon which the system was originally built up amongst bel- *268 Hgerent States or nations. It will, on the contrary, suffice to state, that under our constitution or system of State government, we can conceive of no such thing as a privilege, or yrhat is more professionally dassable as a franchise, being made to embrace any species of general occupation, which a citizen may lawfully pursue under the general freedom of the constitution.

It results, therefore, that as under the constitution merely, the right to own and sell goods or merchandize was exactly the same as the right to own or sell any other property, such a right cannot be transmuted into a franchise or privilege, for the mere purpose, which is here alone pretended, of realizing from the property, or the business of buying and selling it, a higher revenue — so that the constitutional question is the same, or must be decided upon the same principles, and in the same manner, whether it be applied to the right of the legislature to transmute the purchase and sale of such property into a privilege or franchise, fop the purpose of doubly taxing it, or to doubly tax the merchandise at once, without such pretended transmutation. It is substantially the same question — such a privilege as may be taxed for the purpose of mere revenue, (as here,) consisting alone of what may be termed new rights, devised and created by legislative grant, of which the permission to keep a toll-bridge, a ferry, a canal or a railroad may be mentioned as instances or examples. They constitute, in short, a portion of the conceded prerogatives of the government or State, (the very point in controversy,) carved out as it were and given to an individual, an association or incorporation. For the exercise, enjoyment and protection of such a privilege, it is unquestionably competent for the legislature which grants it to prescribe the terms upon which it shall be exercised, and it would hence be no less incompetent than indelicate for the courts to assume to review either the wisdom or the discretion of such enactments. Their more grateful and appropriate duty would accordingly consist in simply enforcing them.

Except, however, in a class of cases which depend upon a principle wholly different from any which can be pretended here, (namely, the unfettered municipal or police authority of the State,) it is deemed evasive and incompetent for the legislature to single out the employment in which any class of citizens may be engaged, under the constitution, and by annexing to its exercise penal prohibitions, (as in this ease,) attempt to construe or convert its subsequent exercise or enjoyment into a “privilege” or “franchise,” to be paid for according to the unlimited discretion of the legislature. If this can, indeed, be done, we need but repeat the wholly deceptive and even contemptible *269 inefficiency of the constitutional guaranty in question; for it is but too strikingly obvious to be gainsaid or parleyed with, that if the right to sell one description of property, not injurious to the public morality, or otherwise within the exception above alluded to, may be thus legislated into a “privilege,” any and every thing else may be similarly transmuted into a “privilege,” and thereby, by undergoing so simple a process, an article worth an hundred dollars, or any other given sum, may be taxed a tenth of its valu'e at one session, a fifth at a subsequent session, and finally as muqh or more than it is worth, whilst other property of the same value may be taxed either not at all, or in a sum so nominal as to be in mere seeming conformity to the constitutional requisition we are considering.

Unless, therefore, it be intended to assert and maintain that the taxing power of the legislature is virtually unlimited, it seems to us that the construction which assumes the legislative competency to create and tax “privileges” or “occupations,” except for the purposes twice before alluded to andnot pretended here, must be inevitably and wholly abandoned — leaving the license system of specific or extra taxation to its only legitimate functions under such a constitution as ours, namely, its application to new and special rights or privileges legitimately created by legislative authority, and as a measure of police or municipal regulation. Considered in reference to this class of cases, we concur in a former judgment and opinion of this court, when one of that nature was pending before it, in reference to which it was held that “ whenever the legislature prohibits any calling or profession it ceases to be a lawful pursuit; and when the legislature do not prohibit it, but allow it to be exercised by certain persons, having certain qualifications prescribed in the law, it then becomes a municipal privilege, which may be only exercised by those persons who have the qualifications and pursue the steps required by law.” (Austin vs. the State, 10 Mo. 594 .)

The question there before the court, being the constitutionality of the dram-shop license, any remarks or arguments which the opinion may be supposed to contain outside of the case made, or at furthest, cases of its class, would of course be no further authoritative or binding than as they might commend themselves to the understanding or the reason of those who read them. Standing as the basis of this class of objects, upon a principle distinct from that of mere revenue, and concerning which the law-making authority is thus left comparatively without control, considerations involving the public morals, the public health and the general public security, will doubtless at once most prominently suggest themselves. No such question, however, being *270 here involved, we proceed to enquire yet a little further, whether the obvious purpose of the constitution, in respect to simplicity and equality of taxation, can be frustrated and overthrown by the mere adoption of a different system, than which none.could perhaps be better designed to blind and cheat the people, under cover of their supposed indisposition, or incapacity, to trace it to its source and follow it to its inevitable results.

No reflecting citizen need be told that in the end the consumers of the merchandise thus licensed or taxed, pay back to the merchant not only the whole amount of the tax he has been compelled to advance, but a per centum upon that amount exactly equal to the average profit on the goods themselves. In other words, the profit of the merchant is necessarily laid upon the stock of goods he has purchased, in such manner as to cover all the expenses tie has had about them, whether in first cost, freights, licenses, or any thing else. No fair and upright merchant will deny this, and if he were even to do so, he would probably find few customers accommodating enough to believe him. Suppose, then, the average profit which the merchant is compelled to lay upon his stock, in order to cover bad debts and everything else, be but twenty per cent, on his goods, we thus establish the rate of interest which the people pay to their merchant for advancing that portion of the revenue for them — thus demonstrating that the indirect and unequal method of raising revenue by that system of taxation is by far the most expensive that could well be adopted. To illustrate : Assuming that $50,000 is thus annually advanced to the collectors by the merchants, the increased aggregate addition to their bills against their customers (in consequence of the license tax) would of course be $60,000, and this sum, according to the usual course of trade and business, is payable by the customers alluded to, to their merchants, about the same time of the year that their more open and direct taxes are payable to their various collectors. It being thus apparent that every citizen who thus contributes to the treasury through his merchant, pays at least twenty cents in the dollar more than if he were to pay it in an open and direct manner to the collector — a process which all can understand, and about which there can be no mystery — what solitary substantial consideration even of policy or expediency, can be adduced for pushing such a system beyond the design of realizing from its application a more certain collection of the merely constitutional or general ratio, to which such property is also additionally subjected by the proviso in question.

But let us still further demonstrate the inequalities to which such a system is always liable, and in doing so furnish yet another reason *271 which may be supposed to have had its weight with the convention, in inducing them, as they doubtless intended, to guard against it by the strong and emphatic line we have so often quoted: There are doubtless in the State many thousands of families, who, having no land, and perhaps but little else to be protected by the government, should be comparatively exempt from taxation for that purpose. Their necessities or their avocations, however, oblige or induce them to supply themselves from the stores of merchants in even a heavier degree (many of them) than some of the more wealthy classes have to do — so that, in this point of view, the citizen who may be compelled to rely upon his daily avocations or employment for the xnaintainance and support of his family, pays even a greater proportion of this branch of the State and county revenue, than the comparatively well-off man who has none. If a worse or more unequal and oppressive system can be conceived of, than thus to apportion one branch of the taxes of the people according to the size of a man’s family, instead of the size of his estate, we are fain to confess the obtuseness of perception which prevents us from discovering it j nor can we believe that the convention could have imagined it possible that they had left the legislature invested with the constructive authority, not only to adopt such a system whereby to collect the constitutional ad valorem to which “ all property” should be subjected, but to make it an excuse for thus doubling the taxes upon thousands least able to bear them, and yet further indeed, (as the argument here implies,) to levy thus the entire revenue of the State ! Whilst a volume would little more than suffice to trace the varying, sometimes uncertain, scarce noticed, yet always iniquitous consequences of such indirectness of veiled or indirect taxation, all oi it may be nevertheless supposed to have weighed with the convention who founded our system, and who, but intelligently realizing the great and all pervading truth, that “ no people can be strictly free whose trade is not free,” intended to exempt ours, as far as practicable,, from the indirect shackle and the ramified injustice of the unfair and oppressive laws in question.

We will restrict ourselves, therefore, in this connexion, to a single additional example of their injustice and inequality, and even that will be introduced more than any thing else for the purpose of connecting with it a suggestion which we conceive to result as a corollary from the decision we are about to render. It is seen by the report of the Auditor, that considerably more than half the sum derived from license was last year paid by the merchants of this city. It is, indeed, most probably the fact, that the wholesale dealers alone pay one half the whole *272 amount. It will at least suffice, for the sake of the argument, to assume that they annually pay $25,000 as the State, and double * that sum as the county levy, upon their aggregate licenses. As their profits consist wholly upon their sales to the retail or country merchants, and as that of the retailers consists wholly in their sales to their customers, each citizen of the State at large can estimate for himself how much and in what disproportion even to the citizens more immediately interested, he is thus forced to contribute through his village merchant to the treasury of the county of St. Louis, and decide for himself, without the authority of a law book, whether found in a library or inadvertently misapplied in a newspaper, whether a system thus devised and thus operating, can be upheld with even seeming professions of respect for the great principle of equal and open taxation, according to the value of property,” as provided for, ordained and written down in his bill of rights.

Having thus demonstrated that under any and every view of the case, it is the consumers and not the merchants who ultimately pay these in-directj unequal and most odious assessments, whilst the latter may well enough resist, and complain as they have done, that they are compelled to advance for their customers a double or a four-fold tax upon the <£ property” which the daily wants of the country require to be supplied, just as other necessaries of life are daily supplied, we are nevertheless unable to perceive, at least as a general proposition, what just or equitable claim they could present, for having reimbursed to them, either from the treasury of the State or the treasuries of their counties, even the acknowledged excess of taxes they have thus advanced, but which the reasoning employed discloses to have been added to the cost and charged to the consumer or purchaser. This question is not, however, judicially before us, and as we suppose it probably never will be, he proposition need scarcely be further elaborated.

*273 A more appropriate connection, however, may not present itself, in which to answer the argument sometimes advanced in favor of this indirect taxation, which is, that however enormous, the people pay it willingly, inasmuch as no one is compelled to buy the goods thus taxed unless he sees fit. The same argument, precisely, (if it be an argument,) would apply to the payment of the more ordinary taxes of the country, namely, that those who do not like to pay them can move away from the county, the State, or the city, which inflicts or imposes them. We have previously intimated that in the present structure, or rather under the present wants of society, the cottons, the coffee, and other articles from the shelves of the merchant, are as indispensable to the comfort and the support of families, as almost any thing else that is taxed; and it results, therefore, that the customers of stores, upon whom falls the ultimate oppressive weight of this unconstitutional legislation, have scarce more option in evading or avoiding it than if the tax upon them were direct instead of indirect.

Recurring to the line of argument, from which we have somewhat digressed, may we not respectfully inquire why, for what sufficient end or object, was this provision inserted so formally, and so solemnly in the declaration or Bill of Rights, if the construction contended for be at all correct ? If the legislature has the power to declare what property shall be “subject to taxation,” and to impose all the burthens of government upon a single species of it, or upon one or more vocations, callings-or"professions, and exempt all others, and is restricted only to an equal ad valorem tax upon the same kind of articles, then the unlimited power to over-tax any article of property, withoufthe slightest regard to its value, must follow as a necessary inference, and this provision in the Constitution become, of course, an openly contemned absurdity, as well as a practical nullity. The legislature may declare, for instance,'that cotton fabrics shall be subject to taxation, and impose a tax of one or five per centum on such “merchandize,” and in the same act declare that woolen fabrics shall be exempt from taxation, or pay but the nominal sum which may for the. time be charged upon other general property — or vice versa — thus establishing an unjust and unequal rule of discrimination, by which property will be taxed not according, but in utter disproportion to its value. We deem that the Constitution scarce less expressly forbids this, than it does the suspension of the writ of habeas corpus; for, independent of the rule of construction heretofore alluded to, which restricts the agent to the method designated, and (where imperative, as this is,) excludes all other methods, language could scarcely be more explicit or direct, or when considered *274 with reference to the historical reasons already briefly adverted to, less susceptible of any other construction than the one enforced by the words themselves. The Declaration of Rights, especially, in which the injunction or guaranty is preserved, was drawn up and adopted, confessedly and only to preserve unimpaired the principles of liberty and equality on which our government was designed to be founded. The lessons of all antecedent history had taught the framers of the Constitution the necessity of providing guaranties for religious freedom; for the administration of justice without sale, denial or delay; for the liberty of the citizen and the liberty of the press ; for the freedom of elections, and, in the same enumeration, for that equality of taxation, which is alone in issue here. The same historic voice, moreover, which led them to regard it as of the greatest moment and importance, that the right of trial by jury, the liberty of the press, and the inviolability of private property, should be placed beyond legislative control or the ever varying prejudices of the hour, must have impressed upon them with equal or even greater force, and as of the last importance (as otherwise having and holding a mastery over all other guaranties) to close up irrevocably that main avenue to wrong and oppression, which legislative tyranny had in all ages resorted to — namely, the abuse of the power to tax! From the time when Hampden and his compeers, by refusing to pay “ship money,” aroused England to a defence of popular rights, down to the period when the American colonies denied and resisted the asserted right of the British Parliament to tax them without limit, or, “in all cases whatsoever,” the minds of reflecting statesmen had been studiously and solicitously directed to the great and all-embracing question of taxation, as most concerning and most affecting the ultimate liberties of the people.

It is, therefore, that although it will not of course be expected that in a mere judicial opinion there should be reviewed at much length the historical argument thus again suggested, it may be appropriate enough to so far condense an outline of some of the most prominent modifications which become apparent from a chronological review of the history and laws of a single government — and that the one from whose oppression our own has sprung. It will be thereby perceivable, that amongst the radical changes which the so-called British Constitution has undergone, the great question of taxation was but too fearfully and oppressively prominent in all the causes which concurred to produce it.

With the introduction of the feudal system into England, came various modes of exacting or extorting those revenues, by which the sub *275 stance of the people was swallowed up and devoured, to pamper the monarch and the ascendant few by whom they were devised. It is not necessary, of course, to trace the encroachments of “Royal Prerogative” upon the life and the liberty of the subject, but to refer simply to its encroachments upon his rights of property, by the mere resort to disingenuous and unjust systems of taxation. It is true that under that Constitution there was waged for centuries a fierce and relentless struggle between the Monarch, on the one hand, and the Parliament and the people on the other — the general question we are here considering assuming various shapes, according to the particular grievance at the moment complained of; but with that controversy our subject has of course no further connection than as denoting the abuse of the power to tax, whether perpetrated by the King or the Parliament.

The contest was at first necessarily waged against the royal claim, as the monarch in the exercise of his then asserted and generally conceded prerogative, determined for himself, without the intervention of parliament or council, the mode and the measure of taxation. It need scarcely be suggested, therefore, that during the long period in which such a prerogative was exercised, both English history and English law-books, became but too replete with the stories of the most varied, stealthy and outrageous exactions. Contenting ourselves, from necessity, with the branches, or titles alone, of some of the most prominent ones — in as much as a chapter would be necessary to explain the fla-gitious pretences, and the oppressive bearing and construction of many of them — we find them written by Blackstone, thus :

“ Custody of the temporalities of the bishop, corodies, tithes in extra parochial pláces, first fruits and tenths of spiritual preferment, rents and profits of demesne lands of the crown; the various profits and commutations growing out of military tendres; escuage; scutage ; talliage ; wine licenses ; forest laws with their amercements ; deodands ; forfeitures and amercements through courts of justice; fumago customs; prisage and butlerage; right to all royal fish ; all wrecks; ton-age and poundage ; treasure trover; waifs; estrays ; bona confiscata; escheats ; custody of idots’ estates ; purveyance; (subsequently compounded for beer license,) game laws ; servile fruits and appendages, such as aids, reliefs, primer seisins, wardships, marriages, fines for alienation, &c., &c.”

These constituted, as already intimated, a portion of the elements or subjects of British taxation, under the exercise of which a system ol servility grew up which ages have subsequently but comparatively overturned. The charter of Henry the First promised a seeming relief; *276 but was apparently forgotten by his immediate successors. Passing, therefore, over the history of the struggle prior to King John, we refer to the Magna Charta and the Charta de Foresta, as demonstrating that the abuse of the taxing power at that period contributed its full quota to the noble uprising which wrested from the crown those "Declarations of Rights" that have served as the sources or models of all subsequent "Bills of Rights "&mdash;whether in England or in our own country&mdash;in the National Convention of ~ and gaining ever after. wards, reaching perhaps their first full and explicit recognition, in the "Bill of Rights" annexed to the constitution of Illinois, * 1818, and af- terwards in our own constitution in 1820.

1820. By the English charters alluded to "many grievances and encroach- ments cf the Crown in the execution of forest laws" were provided against and redressed, as were also "many grievances incident to feudal tenures," including "unreasonable amercements, illegal distress by the Crown, purveyance, and pre-emption, exclusive grants of *277 &c. Thus, “ scutage,” for instance, which the King had been arbitrarily levying upon the land-holders, was by the Magna Charta expressly denied to the monarch, unless first imposed by the common consent of the council of the realm. So, in the charters of Henry the Third, there were in many respects similar provisions, although the restriction above was again essentially modified. Under Edward the First, and his grandson, it was at last expressly provided, that the King should not take any aids or tasks, any talliage or tax, but by the common assent of the great men and Commons in Parliament. A great concession for that period was thus obtained. And so we might progress with the alternations of this continued struggle to the period of the accession of Charles the First. A few additional facts, however, to illustrate the single point at which we aim, will here suffice.

In the time of Henry the Seventh, the celebrated Star Chamber, court or council, was remodelled with reference to the most extended oppressions, of which the more facile exercise of a tyranous and unrestrained authority over the “ property ” of the subject, may be said to have constituted the aim or the concentration of the whole. The author already alluded to informs us, that the marked feature of the reign of that prince was “that of amassing treasures in the king’s coffers by every means that could be devised,” and that all laws were framed and construed accordingly. This exercise of unjust and despotic power was resorted to under different phases and in different degrees by subsequent sovereigns, until Charles the First, regardless of the petition of right, revived the Forest Laws, upheld and enlarged the powers of the Star Chamber, and in the most unblushing and arbitrary manner resorted to levies of tonage, poundage, ship-money, &c.

We have already alluded to Hampden and others, under whom began the struggle by which that monarch first lost his life, and his house its throne. Passing thence to the Restoration, it is seen that Charles the Second was compelled to approve many laws for the removal of taxes, and to disclaim the various oppressive prerogatives insisted upon for filling the coffers of his ancestors by unjust taxation of the people.

The revolution of 168S gave birth to the “ Bill of Rights,” which again provided many wholesome restraints or checks upon the power to tax, and may hence perhaps be considered, in connection with the prior revolution of 1644, to have settled (in the main, at least) one great question of taxation, namely that the King should not tax the people without their previous consent through the Parliament or Legislature. From that period, therefore, the abuse of the taxing power may be considered, under that government as under ours, as being mainly of legis *278 lative usurpation ; and it will be seen that as the royal power over the creation of revenues diminished, parliamentary assumptions grew up and increased in proportion, until that body, at last claiming to be omnipotent, (as is virtually claimed for the legislature here,) and representing as it always had the wealthy alone, (and even that class unequally and unfairly,) there was brought about a yet more glorious revolution, of which we shall remark a word hereafter — our object being to demonstrate that the question we are here considering, is but a modification of the struggle which has existed from the days of William the Conqueror, as well under Legislatures as under Kings, respecting the legitimate basis or right upon which men are taxed at all, except in the proportion or ratio in which they are protected.

A brief reference to parliamentary taxation is deemed sufficient for that object — it being, as already intimated, to illustrate merely the progress of a struggle which ever has existed and ever will exist, respecting the proportion in which one class of men may tax another class of men, (whether directly or indirectly,) unless the basis be definitely and definitively written down and fairly lived up to, under written charters or constitutions. Under the general names of “aids, subsidies and supplies,” the parliament imposed, amongst many others, the following revenues: Land tax, malt tax, customs or duties, tolls, tributes or tariffs, payable upon exports or imports, poundage; aliens duty, excise duty, salt duty, postage, stamp duties, house and window taxes, tax on servants, taxes on hackney coaches and chairs, duty upon offices, pensions, &e. The land tax was not assessed “in proportion to its value,” but by the least defensible and most arbitrary rules, and the same may be said of the custom or duties upon exports and imports — substantially, in one sense, the question before us here. Nor had the excise imposed by them any just reference to the “value” of the article taxed, wherefore even Blackstone was constrained to admit that “their rigor and arbitrary proceedings seemed hardly compatible with the temper of a free nation.” If, therefore, an eminent British jurist, holding as we have seen to the absolute omnipotence of the legislature of that kingdom, could not forbear a reprehension of the inequality here complained of, what would seem to be denoted as the judgment or the commentary of an American judge — and of such, most especially, a judge of last resort in a State whose constitution is believed to have been among the first in which there was specifically, and as we think unconditionally, interposed between the governed and their government, the only practicable guaranty for that absolute justice and equality of taxation, at which previous revolutions and conventions had unpropitiously, and therefore, *279 but unsuccessfully aimed. Admitting if the power exists, that however much a judge may deprecate, he cannot interpose to prevent its exercise, it has been the single object of the summary review, which we will not further protract, to group together a few only of the more prominent historical considerations which may be fairly assumed to have influenced the men of the convention, to write down the single imperative and unambigous line they have left us, respecting a subject which we have seen by the merest glance at its history in a single government, has been “the fruitful mother and foodful nurse of mischiefs monstrous and innumerable.”

Not England alone, however, but France, and other European nations, under the maddening and despondent pressure of financial struggles, and financial wrongs, had witnessed a resort to popular violence as the only mode apparent to the people for a redress of their grievances, so that it has, in modern times, passed almost into political axiom, that in constitutional or comparatively limited governments, the rights of the people are most generally, because the most stealthily, assailable and assailed, through gradually increasing abuses of the taxing power, and that revolutions but follow (almost naturally, as it were,) and close for the time the overgrown and ramified abuses which come at length and inevitably to be realized in the maturity of an all-embracing and hence all-pervading development. The duty and propriety, therefore, of inserting in our bill of rights — the Magna Charta, as it has been termed, of our constitution — a sure and unambigous guaranty against even the possible abuses of such power, was doubtless as apparent to the understanding, as it seems to us to have been imperative in the will, of the wise and partiotic men who laid the foundations of our system. They had seen that in addition to the lessons of English history above condensed, the Parliament of England had asserted the unlimited right to tax their fathers, and that the power was heroically resisted, not because the comparatively paltry sum imposed was too burdensome for them to bear, but because it was the assertion of a principle — a different modification of the principle here, but still a principle — which, (L not resisted) would draw to it and with it an absolute and unrestrained control over the “property of the colonists.” It being, in short, the resistance of such a principle that eventually made us free, and can alone preserve us so, it was with wise and patriotic forecast, that the authors of our own great charter or bill of rights sought to close aasd forever bar that broad and specious doorway through which a.thousand evils had poured upon other lands, and whichlbefore their own eyes had well nigh served even the original confederacy of these States, before *280 it ultimately gave place to our present “more perfect union.” This, it is but assumed in this opinion, they have done, by laying down as the undeviating rule of taxation for the purposes of general revenue, the only equal, just and secure one we have so often quoted. Would it not indeed, have been strange, at that comparatively advanced and enlightened era, and whilst guarding as they did agianst the other proverbial abuses of government, had the authors of these other provisions to secure comparative individual freedom in connextion with popular rights, overlooked this subject, confessedly the most mischievous and direful of either ancient or modern times? Would it have been less strange, liad they, either intentionally or incautiously, left it open to the construction here contended for, seeing, as we have seen, that what they have there written is the only line or syllable they have left us upon the subject of revenue, and hence the only barrier interposed by the constitution, between oppression, and the creation of favored interests and classes on the one hand, and the rights and equality of the people on the other.

We have elsewhere already remarked, that the question to be passed upon here, (and soon, thence it may be added, to be passed upon by the people,) is not whether the legislative department of the government, periodically elected by themselves, will probably lend themselves to the perpetration of any or all the wrongs enumerated or supposed, but whether the constitution of the State, shall be held by all departments of its government, to mean what it says? Upon our own minds, we are fain to confess that the subject has so grown and fixed itself, that we deem it almost inexplicable how so just and beautiful a political and legal principle should any where be held to involve even the slightest mystery, or that the force of its plain and simple application to the case before us should be less clearly apparent. That a system of taxation should have crept upon us, whether by inadvertence or design, or in part by both, by which one citizen pays, under the most favorable circumstances, more than twice as much in proportion to the value of his “property,” as his neighbor pays for other “property” of exactly the same “value’5 — the law, in the meantime, protecting one.no more than the other — and that it should, nevertheless, be considered as even arguable that such legislation is not in derogation of the constitutional injunction that “all property shall be taxed in proportion to its value,” has caused us to doubt whether it be longer possible to adapt human language to the assertion or maint’ainance of human rights. Looking in this connexion to the case made by the record alone, and giving to the State, for the sake of the argument, the benefit of the con *281 struction for which its counsel contends — namely, that the constitutional provision in question does not apply until the property is subjected to taxation by the legislature — still much of the property of the defendants was so “subjected” (in breaking it up for country dealers) under the 10th section of the law we have previously quoted. There would seem therefore no resource in this case, save it be in the yet broader* position assumed by the counsel for the county in their petition for a rehearing, which is, that the constitution does not even require that all property which is assessed and taxed in the ordinary manner shall be taxed the same per centum upon its value, hut that each kind of property may be taxed, each at a different per cent, or rate, provided that the sum imposed bear simply a proportion or per centum according to “value.” Whilst this construction has at least the merit of contemning boldly and directly the more broad and general application which was affirmed for the guaranty in question by the terms of our former opinion, and of marching openly to its object through the medium of direct and undisguised discrimination, in reference to the different property of different citizens, it is deemed here a sufficient reply to such an assumption, that the constitution does not say every different kind of property, or every different class or article of property, shall or may be taxed, some in one and some in another proportion to its value, as compared simply with other articles of the same class or kind, but simply and unambiguously “all property.”

Whilst, therefore it would seem to have been the object of the people, in the great and all-embracing provisions which they thus caused to be engrafted upon their constitution, to provide against the proverbial and pre-existent evils of unequal taxation, with reference not only to those herein historically alluded to, but also, as having afflicted themselves under their territorial organization, * and probably the fathers of some of them in the older States from whence they came, the construction of their work, as here contended for, not only defeats this natural and noble purpose, but fixes upon the convention either the unpatriotic object, or the degrading igorance, or both, not only of era- *282 balming (as it were) this very evil, but with seemingly dividing it beforehand, with malignant prospective gratification* into castes and classes, according to their alternate hour of legislative domination!

Let us suppose, howeyer, that this was the true design of the convention, and that the true reading of the clause in question should lienee be, that no citizen should be thus plundered of the .money or the property he had acquired, singly, but that it was merely authorized by the constitution, that the oppressive legislation complained of by the defendants, might be wreaked at one session upon all owners of land or slaves in a body, and at the next one upon all owners of merchandize in a body, and so on, and that (according to the construction contended for) any of these kinds of property could be held to mean “all proper ty” — what then? Even such a construction could not redeem or help the case we are considering, because by the laws which are here alone complained of, the property of one merchant in this city may be taxed, for State and county purposes alone, a dollar and a quarter on every hundred dollars’ worth, whilst even the same description of property belonging to another merchant pays at most (and that but constructively, through the land and labor which produced it,) but the constitutional or uniform ad valorem of, at the utmost, sixty cents on the hundred dollars worth. We argue not here this question of construction or assumption, seeing that in no view of the case can merchandize which is of the “growth, produce or manufacture of this State” be held to be taxed as other merchandize is — so that even the extreme class argument of construction fails in its office here,, requiring the helping hand of the judgment by which we shall strike off the excess, * to give it proper application. Driven, therefore, from that, should the mind, “convinced against its will,” wander again to the pretence that it is the occupation or the business, and not the property at all, which is thus taxed — if the subject can thus, and thus only, be rescued from the plain and honest grasp of the constitution, and if such a distinction is allowed to have the force contended for, it need not of coarse be further, because it has been already but too redundantly demonstrated that the constitution itself stands self-annihilated — at once a pander and a prey to the corrupting legislation of castes and classes, instead of being alike the palladium and the protection of all.

*283 The last position which perhaps claims our consideration in the petition for a rehearing, and which has also been renewed and enforced in the written argument which has been filed for the attorney for the county at the present term, is, that as the amount of the merchant tax is graduated not by the goods he has on hand, but by the amount received for sale by him during the preceding six months, the assessment complained of is not a tax upon his property. Whether the true design of this mode of levying the tax was, by thus ascertaining the probable amount of the merchants’ business to arrive at the like probable amount of merchantable property, or goods, he would receive during the succeeding six months, and levy and collect a tax upon that; or whether it was designed as a tax on the property already receiveJ, need in no sense perplex the understanding, or receive here judicial, solution. The effect is the same, to-wit, a tax upon “property,” or upon a citizen, because he owns property and claims simply the right to sell it as other citizens are permitted to sell theirs. In practice, it is known that the new merchant, before he can legally sell a dollars’ worth, is compelled to take out his license — paying therefor the fee and the taxes — but if it be even as contended for by the counsel for the: county, the same principle prevails in the more ordinary assessment of general property, namely, that the citizen gives in and pays for what he had on the 1st day of February, in each year, whether he continues to own or has disposed of it at the period of assessment. We perceive nothing, therefore, in this point of the argument, to in any manner embarrass us; but on the contrary, it seems to us to be thereby the more fully demonstrated, so far as the argument is relevant at all, that if the one be a tax upon property, so is the other.

We might perhaps justifiably enough here rest and conclude the reasoning which it has become our duty to render upon the question in issue, but as other suggestions have been thrown out in connexion with the discussion the subject has elicited, which have not been perhaps as fully remarked upon as their importance may seem to deserve, it may be proper, at least not unjudicial — to yet briefly advert to the consequences and conclusions to which they but legitimately and inevitably tend.

Except as assumed in the argument, or as necessarily resulting from an affirmance of the power to pass the law under consideration, the proposition that it is competent for the legislature to subject only the property it pleases to taxation, and to levy and collect the entire revenue of the State from a single species of property, is not judicially presented for consideration here. It may not be improper, however, to *284 essay such a demonstration of its fallacy, if not indeed its danger, as may serve to leave the real question before us without the slightest countenance from the construction thus collaterally or incidentally brought to its support.

If the legislature possesses the power thus asserted for it, to designate a particular species or class of property, and renders it alone “subject to taxation,” it results, of course, as heretofore demonstrated, that they might not only levy and collect the entire revenue from slaves, (as an example,) but they might, with the same exemption from criticism (as a question of mere power) direct that it should be levied and collected off of the value of female slaves, or slaves hereafler to be brought into the State, or slaves within a given age — between twenty and fifty years, for instance — thus practically emancipating or driving away all within those ages, and indeed all ages, notwithstanding there is an express constitutional guaranty to the contrary. We allude to this description of property, and to the guaranty concerning it, mainly for the purpose of demonstrating how wholly at the mercy of an undefined an unrestrained power to tax are all other guaranties of written constitutions, and thereby the more conclusively to justify our previous assumption, that the guaranty of equal taxation, which we are here considering, constitutes by far the most vital provision in the constitution.

As little would it avail under the latitude of construction we are here proposing, that emigrants or others would invoke another constitutional guaranty intended to inhibit the passing of laws to prevent them from coming amohst us with their slaves, because the argument would be ,quite as plausible that taxation, merely, did not deprive a man of his option to own and work a slave, and therefore did not prevent him from coming or from staying here, as it is or can be in the case before us, that to tax a merchant’s property twice — in one section on the general advalorem basis, and in another section with substantially an additional advalorem — was no evasion nor invasion of the constitutional guaranty that “all property shall be taxed alike.”

The legislature might therefore do as we have been supposing, or, anon, abandoning all taxation of slaves, another legislature, differently constituted or differently combining, might assess upon horses and upon lands all the taxes of the State, decreeing thereby, that groceries and merchandize should pay none of them. In short, concede to the legislature the power to “subject” to the circumstances without which the clause in the constitution cannot attach, and that they can destroy any given property or department of business, by simply and alone subject-ng it to taxation, and a power is thereby surrendered and given up, *285 than which a Yenitian oligarchy possessed none more dangerous to the private citizen. Can it be doubted that this is precisely what, with the-volume of the past before them, and looking to the least possible volume of the future, the convention intended to most sedulously guard against whereby the State they were founding for “their children, and their children’s children,” should not add another example, speaking from the tomb of buried empires, that “the power to Tax, is the power to Destroy /”

Looking simply to the net proceeds of a revenue system, it is doubtless conformable to the spirit of the Constitution that the Legislature should direct the assessment of such property only (if made in kind) as would yield something beyond the expenses of assessment and collection. There may also be reasons for other seeming exceptions, which need not be here discussed. The provision in question becomes, however, a reproach instead of a guaranty, if under cover of a classification, or description, or declaration of property to be taxed, the legislature may bring what citizens they please, within the circle intended to be guarded by the Constitution, and by that very act destroy the value, of their property, or cripple and prostrate their possessions or estates.

That this could not be done, even upon the general principles of American institutions, (to sny nothing of our own express guaranty) we quote from the most approved American commentator — a name which stands to the lawyer or the judge in this country, in the same, or even greater estimation, than that of Sir William Blackstone does in England. Upon page 361 of the second volume of his great work upon American law, Chancellor Kent holds the following explicit language :

“Every person is entitled to be protected in the enjoyment of his property, not only from invasions of it by individuals, but from all unequal and undue assessments on the part of the government. It is not sufficient that no tax or imposition can be imposed upon the citizens but by their representatives in the legislature. The citizens are entitled to require that the legislature itself shall cause all public taxation to be fair and equal, in proportion to the value of property, so that no one class of individuals, and no one species of property may be unequally or unduly assessed.”

As a question of power, then, may we not safely submit even to the candor and intelligence of the gentlemen who have so ably presented this question for the State.and the county, whether there is more reason for denying to the legislature the authority to describe ns taxable a por *286 tion of a class, (as in the sex of slaves, and other examples previously mentioned) than there is for denying to it the power to describe slaves alone, or cattle alone, or merchandize alone, as subject to taxation, all of them being in fact but fractional parts of the general class of property known as personal?

Concede, then, this power to the legislature, and the only instrument of tyranny which is longer deprecated in ihe comparatively free governments of modern times, receives an efficiency never designed by our fathers, and too dangerous to be contemplated without the greatest solicitude. The cotton-milling and the woolen-milling business, for instance, and as furnishing the only additional example we shall adduce or amplify — these great and rival interests are in competition, each seeking, directly and indirectly, (and in the latter respect by systems and combinations sometimes the least generally understood or suspected) the favorable aid of special legislation. Suppose either to obtain the major influence with the legislature, is it not palpable that it has but tó lay its taxing hand upon the other, either directly or indirectly, (for, in the argument here, the power is assumed for both,) and thus remove it from rivalry with the interest which it designs to specially favor? Who does not perceive that in this manner all the business arrangements of the community maybe deranged and disturbed by the alternate preponderance of class interests in the halls of legislation ? Investments made upon the faith of an equal constitution and equal laws, may be rendered worthless or ruinous, because every branch of business in the community may be alternately subjected to an influence (it may be,) as remorseless as that of the usurer, a power as unlimited as the Inquisition^ and a dictation as absolute as if it were under an Austrian police! Every man’s occupation, however useful in itself, however moral in its character, however indispensable to his own support, however his entire fortune may be involved in its pursuit, is absolutely at the “tender mercy” of special legislation, through the mysterious yet all-potential mé-dium of the taxing power!

To answer that there is no danger to be apprehended of such results, is not to argue, but to beg the question — -to treat it as one of child-like -confidence in the legislature, instead of a constitutional guaranty, intended for the absolute security of all, — and the weaker classes most of all — to pass upon it, in short, as though we had no constitution, and not-as Judges sworn to support and uphold it. We will not, therefore, further dwell upon these or kindred propositions, than by respectfully resubmitting the single enquiry, whether a greater solecism or absurdity can be conceived of, than to admit, on the one hand, that the obvious *287 spirit and design of the constitution was to insure uniformity and equality in taxation, yet contend, upon the other hand, that the framers of that instrument left it so completely the subject for subsequent mockery and practical disregard, as that it is competent for one of the departments of their own creation either to choose directly the interests which it will “subject” to, and those it will exempt from taxation, or, indirectly, to so license and tax the “occupations,” or what it may choose to call the “privileges” of the country, as to throw the burden's of governmental support how and where it pleases? We but reiterate that whilst admitting the entire competency of the legislature, upon occasions and for reasons not to be pretended here, to resort to the system we are reviewing as the occasional medicine of society, the people or the State, to countenance or sanction it as its daily food, involves not only a danger, but a constitutional absurdity, than which if there be one more palpable and wholly indefensible, we fain confess our inability to perceive it. And although this question is but incidentally or collaterally before us, and we are perhaps too little prone to grope for ‘.‘authority,” where great and acknowledged principles can be found to light the pathway of our understanding, we nevertheless deem the conclusion of the court in an adjoining State, in a case where the incidental question we have been considering was there the direct or main one, too appropriate and conclusive to be foregone or omitted. In the case of Stevens & Woods vs. The State, (2 Arkansas Reports, 299,) Chief Justice Ringo, remarking upon that clause of their Constitution which is similar to our own, sums up its whole legitimate interpretation in the following plain and explicit language :

“From this quotation it will be perceived that the legislature is bound by the constitution, in fixing the State tax on property, so to regulate it that every species or description of property subject to taxation shall, according to its value, pay an equal ratio or amount of revenue to the State; or, in other words, property shall be taxed according to its value, and the tax thereon shall be equal and uniform throughout the State. This rule, as to the State revenue, is inflexible, and leaves with the legislature no power to discriminate and fix upon one description or species of property a greater tax than that fixed by law upon every other description or species of property, of equal value, subject to taxation.”

It will be perceived that in what we have thus far written, we heve not denied, but rather conceded to the legislature the power or autln ify of adopting the license system as perhaps the most reliable and c< venient means it could devise for collecting (as nearly as may be] *288 constitutional ad valorem upon merchandize — that being a description of “property” arriving in the State, and thence distributed through its counties, in a manner essentially different from the less marketable and more stationary property of other occupations. It would be equally competent however — and it may, perhaps, be added no less proper — to adopt the same system in relation to other property, if the probable expense would not exceed the probable returns to the treasury, thereby expending instead of raising revenue or taxes. Recurring, however, to our previous recognition of the authority of the legislature, for the reasons stated, to collect a revenue upon all merchandize embraced in the law, wherever the collector may find it, equal to what is assessed and collected upon other “property,” we frankly acknowledge the difficulty we have realized in so far deferring to the legislative, the inclinations of our own judgment, as to overlook the seeming wrong of taxing anew, even in the constitutional ratio, the goods of the country merchant, or rather the goods for country customers, after they have already run the gauntlet of a State and county taxation here.

The sum then of the opinion here rendered, and of what is understood to be the concurring judgment of a majority of the court is, that the act of 1849, which purports fo establish a system of taxation upon merchants and grocers, “in lieu” of other enactmen's then existing, is not of itself such a departure from the basis of taxation ordained by the constitution, as to require the interposition of this tribunal in the case here made; but that the proviso to that enactment, cannot be otherwise regarded by a differently constituted majority of the bench, than as being in the nature of a saving repugnant to the constitution of this State. That constitution, therefore, being the act of the people, agreeing ani~ speaking in their original or sovereign character, and defining the permanent condition of the social alliance under which we live, it follows as a consequence, that the proviso in question must be regarded as inoperative, null and void. It will be seen to result, therefore, from a comparison of the different opinions herein rendered, that taxes may be collected from merchants and grocers under the authority of that act alone — using for that purpose the machinery merely, which is provided and directed by the act of 1845. The judgment of the criminal court will accordingly be reversed and the defendants discharged.

If the conclusions thus arrived at satisfy the understandings and the pidgment of the men of this generation, upon whom and their posterity, for good or for evil, they are alone to act and operate, it will not suffice in the attempts which may be made to weaken or impair them, that a seemingly different, concession, as to the legislative discretion which has *289 been heretofore rather varyingly exercised, has been tacitly acquiesced in for so long a period. To this it might be answered, that such concession has been, in fact, but se'eming, and that such acquiescense most probably resulted from the fact, that the constitutional injustice which has ever been held to be involved in such legislation, was never before carried to an extreme which induced persons aggrieved to incur the trouble and expense of carrying the question through the appropriate judicial tribunals. Be that, however, as it may, if such an argument, or rather such a want of argument, could have availed in other and previous cases, then to say nothing of the period when even the law of Moses was obscured by human traditions and constructions, whereby the morality of the Israelites, themselves, became correspondingly corrupted and defiled — to deduce nothing from this, nor from the concurring illustrations of more than eighteen hundred years of intermediate history, it may suffice that in addition to the Loan Office, the Stay Laws, and the Divorce Laws, each and all of which have had their day, as om-nipotently as the law we are considering has had its day in our own State, passing by all this, however, if the “argument” alluded to, could have availed in lieu of the deliberate judgment which it is the duty of all to exercise, the statute-book of even the Federal government might have continued to blush under the disgrace of an alien law, a sedition law, and a feajfully corrupting engine of national incorporation, to make and lend money ! To enact the two former statutes, there are doubtless few who will contend in this day that congress possessed even the slightest constitutional power ; and it may perhaps be scarce less safely assumed, that it has already become at least comparatively inoffensive, to as broadly and as wholly deny the existence of that constitutional “necessity and propriety,” upon which alone can legitimately be predicated the competency of congress to setup in the States, a mammoth paper money bank ! As, then, in their day, after being triumphantly swept through the two houses of congress, and receiving the deliberate sanction of the national executive, the constitutionality of these several enactments were adjudged of and maintained by the. highest courts then or now known to our jurisprudence, the masculine and hence self-relying intelligence of the men of the present day, after having taken to themselves the selection ot their own “judges,” would scarcely anathematise it as sacreligious or improper, had we, in the case before us, and in the conclusions at which we have arrived, overruled even the opinions of our predecessors upon the bench we occupy. Much less, perhaps, will it be so deemed of, when it is known and appreciated that the great and momentous question which it has fallen to *290 Pur duty thus to consider and to pass upon, and which we deem tobe settled upon every legitimate principle of construction, no less than the very terms of the constitution itself, has never before occupied the attention of the judicial department of the government. It has been on the contrary, in the sense in which it has been alone herein considered “an open qúestion” — .receiving for the first time, in our courts, the consideration of the bench or the bar — soon thence to receive, (it may be) under the fortunate coincidence of a judicial election, the authoritative stamp, and the final and enduring impress, of the popular judgment of the State. The power that ordained the constitution, having thus practically the privilege to confer upon it their own interpretation, from such an exposition, should the issue be presented and contested, there can, of course be no appeal.

Ryland, J.

The appellants (defendants below) were indicted in the Criminal Court of St. Louis county, for dealing as merchants without taking out a license, as required by the statutes of the State.

The indictment contains six counts. The first charges that defendants unlawfully did receive for sale and unlawfully did deal as merchants in the selling of goods, wares and merchandise, not the growth, produce or manufacture of this State, by then and there and on divers other days and times, receiving for sale and selling as merchants as aforesaid, fifty yards of cloth, fifty yards of domestic, &c., &c., at a place then and there, and on other days and times, occupied by them for that purpose, to divers persons unknown, without having any license, &c.

The second count charges the same facts as the first, with this exception, that it omits to state that the goods, wares arid merchandise received and sold were not the growth, produce and manufacture of this State. The third count charges that the defendants did import into the State, and unlawfully receive for sale and unlawfully did deal as merchants in selling, at the place and on the days aforesaid, goods, wares and merchandise, (naming them) not the growth manufacture or produce of this State, hut of England in Great Britain; which importing, receiving and selling were in the original packages, bales and forms, as imported from England. This count also states that the duties had been regularly paid to the United States on the said goods, &c., without a license. The fourth count charges that defendants imported and received for sale, and sold on the days and times and at the place aforesaid, goods, wares and merchandise, the produce, growth and manufac *291 ture of New York, Pennsylvania, and other States of the Union, which selling was in the original packages, and also in broken packages without a license.

The fifth count charges that defendants imported goods, wares and merchandise into this State from sister States, and received and sold the same as aforesaid in the original packages unbroken, in which they Were received by wholesale and without a license.

The sixth Count is not materially different from the first. The defendants filed a demurrer to all the counts of the indictment. The demurrer was sustained to the second and third counts, and overruled as to all the others. A jury was then empannelled to try the issue of not guilty to the counts which had been held good on the demurrer. The evidence was as follows : The defendants at the time mentioned in the indictment were merchants, doing business in St. Louis, and received for sale at their store the goods, wares and merchandise mentioned in the indictment, in manner and form as therein charged without a license. That all the goods, &c., so received and offered for sale by defendants were imported directly by them into this State from other States of the Union and foreign countries, and were not the growth, produce or manufacture of this State, and that the defendants did exercise the business of merchants by selling the goods, &e., mentioned in the indictment, as charged in all the said counts, except the second and third counts, and that was all the evidence.

The defendants then moved the court to give the following instruction to the jury, that <sif defendants received for sale, and sold at their store in St. Louis, no other goods except such as were imported into •this State by them, directly from other Stales of the Union, the jury will find for the defendants.” This the court refused to give, and the defendants excepted. The defendants were found guilty. They after-wards filed their motion for a new trial, and in arrest of judgment, raising again the questions of the propriety of the convictions on the testimony and of the legal sufficiency of the indictment. The court decided both these motions against the defendants ; they again excepted, and bring the ease before this court for revision. A reversal of the judgment of the criminal court has been insisted on before this court, upon grounds radical and fundamental, looking to nothing less than the absolute nullity of the laws upon which the counsel for the State rely to uphold the indictment- The cause was first brought before this court at the October term, I860, at which time it was ably discussed at the bar, and was decided by the court, a majority feeling themselves bound by a sense of duty to declare the indictment insufficient to sustain the judg *292 ment of the criminal court, the provision of the statutes upon which it was found, being in their opinion unconstitutional. Subsequently, a re-argument was asked for and obtained by the counsel for the State. This court being deeply impressed with the magnitude of the subject, and of the great importance to the State, of coming to a right conclusion, at this present term, the cause was again submitted to the court on lull written arguments by the respective counsel, and the whole field of the controversy once more carefully reviewed. It is now my duty to state the effect of these repeated labors on my own judgment, and if they have had the effect to satisfy my judgment as to what disposition ought to be made of this case, there is no other consideration worth a reflection. I confess the subject has been one of much difficulty and perplexing doubt, but my conclusions, such as they are shall be given. The questions discussed at the bar involve the construction of several acts of our legislature, as well as the constitutionality of some of the leading features of the said acts, and the questions of constitutionality are raised with reference both to the constitution of the State and of the United States.

So much of these acts will be here stated as will be necessary to show the points which are made upon them. By the first section of an act to regulate licenses and taxes on merchants and grocers, approved March 12th, 1849, it is provided “ that in lieu of the taxes assessed upon merchants and grocers, licensed by the existing law, there shall be levied and collected upon every merchant and grocer’s license a tax at the following rate, to-wit: Where the amount of merchandise received for sale by any merchant or grocer, shall amount in value to as much as five hundred dollars or less, the tax shall be one dollar. Where the amount so received shall amount in value to more than five hundred dollars and not exceeding six hundred dollars, the tax shall be one dollar and twenty cents, and so on in the same proportion, the tax increasing at the rate of twenty cents on every additional hundred dollars’worth of merchandise so received.” This act'does not purport by its title to be amendatory, but it is impossible to give effect to its provisions without treating it in that light. By itself, we are unable to ascertain who is a merchant or grocer, or what is the nature or duration of the license referred to. How the amount mentioned is to be ascertained ; what period of time is to be computed in its ascertainment, or what place is contemplated by the law for receiving the same, by the merchant or grocer. It might also be remarked that, standing alone, it is entirely without sanction or means of enforcement. These difficulties are all referred, by the act itself, to the existing law. I must endeavor, therefore, to find out what is the existing law. “An *293 act” to amend ‘£an act entitled an act to license and tax merchants, approved March 27th, 1846, approved February 13, 1847,” declares there shall be levied upon every such license, to be paid to the collector before the delivery thereof, as follows, viz : First, where the amount of merchandise received for sale according to the provisions of the preceding sections of the above recited act, to which this is amendatory, does not exceed five hundred dollars, the sum of two dollars and fifty cents. The act then proceeds to grade the tax which it imposes, without furnishing any solution of the difficulties above stated.

Next in order, as we proceed in our examination of “ these existing laws,” stands the “ act to license and tax merchants,” approved March 2.5th, 1845. The first section of this last mentioned act declares that “ every person, or co-partnership of persons, who shall deal in the selling of goods, wares or merchandise, at any stand, store, or place occupied for that purpose, is a merchant.”

The second section imposes a penalty of from fifty to one hundred dollars for dealing without a license. The third section shows that this license shall continue only for six months and protect the person taking it only in one place. The fifth section explains what is meant by the words “ amount received for sale,” in the act of March 12th, 1849, and the words “ amount received according to the provisions of the preceding section,” etc., in the act of February 13, 1847. It declares that before any person shall receive a license to vend merchandise, he shall deliver to the collector an aggregate statement, in writing, of the “ amount” of all goods, wares and merchandise (except such as are the growth, produce or manufacture of this State,) received at bis store, etc. It is then u amount received,” as just stated, with the exception, as stated, that is taxed by the aet of 1849. The first section of the act of 1849, was intended merely to change the rate of tax assessed, and to substitute a new tax instead of the old ene, which new tax the law declares is tobe levied on persons licensed by the existing law.” The question then arises, how were licenses procured under the law as it existed prior to the 12th of March, 1849 ? The fifth section of the act of 25th March, 1845, above quoted, answers by furnishing a statement of all merchandise, (the produce, growth or manufacture of this State excepted.) I am well satisfied then, that the exception in the fifth section of the act of 25th of March, 1845, is not repealed by the act of March 12th, 1849, but was intended by that act to be recognized as a part of the existing law on which it was made to rest, as explanatory in many material particulars.

By the tenth section of the act of 25th March, 1845, it is further pro *294 vided that the collector shall collect, as an ad valorem tax, such per centum upon all merchandise offered for sale as aforesaid, (except such-as may be offered in the packages, boxes, bales, barrels, or crates in which they were imported, or in which they have remained without being broken,) such amount as may for the time being be levied on real estate.

By the first section of an act to sustain the credit of the State, approved February 16th, 1847, it is provided that the annual tax levied on all objects of taxation shall be at the following rate, viz: On all free male persons over twenty-one and under fifty-five years of age, thirty-seven and a half cents, and all other objects of taxation now: made taxable by law, one-fifth of one per centum on the assessed value thereof. The second section of the act, March 12th, 1849, abolishes the distinction between wholesale and retail dealers which had previously obtained. These are all the statutes appertaining to this subject. it is a well settled rule of construction that all legislative enactments in pari materi not repugnent to each other must be regarded as one act, and construed accordingly.

Proceeding on in this view, there seems to be no difficulty in identi-. fying in a few words the leading features of these several acts : 1st. There is imposed on each merchant’s and grocer’s license where the amount received for sale at his place of business during the six months previous to his application is five hundred dollars or less, a tax of one dollar ; where it is more than five hundred dollars and not exceeding six hundred dollars, a tax of one dollar and twenty cents, and twenty cents for each additional hundred dollars, provided the same has been pro~ duced, manufactured or grown out of the State of Missouri; but if the merchandise, &c., be of Missouri growth, manufacture or pi-oduce, it may be sold without license or tax.

2d. The same merchandise when of foreign production, &c., is to be taxed again by an ad valorem tax of twenty cents on the one hundred dollars worth as soon as offered for sale in Missouri, provided it be not so offered in the packages, bales, boxes, barrels or crates in which it was imported, or may have remained unbroken; while no such tax is imposed on the sale of the same kind of goods or merchandise produced, grown or manufactured in Missouri.

3d. The said taxes so imposed are not laid with the view to any po». lice regulation, hut are purely revenue measures, and fall upon every species of goods, wares and merchandise which can enter into the commerce of the world, provided the same are produced, grown or manufactured out of the State of Missouri.

*295 Tiie whole matter, then, may be further condensed, thus : These laws require the Missouri merchants dealing in foreign goods to pay twenty cents on every one hundred dollars worth received for sale, as a license-tax, before his packages are opened, and an additional twenty cents, called an ad valorem tax, as soon as the packages are opened for sale,, being in every instance a tax of 20 cents per one hundred dollars worth; and where the merchandise remains on hand for sale after breaking the packages, a tax of forty cents on each one hundred dollars worth ; and these operations are required to be repeated under the provisions of the act toties quoties as often as the goods pass by sale from one merchant to another ; while goods of like kind produced in the State are exempted from all taxation. It is upon this state of facts that the question of law is raised : Has the legislature the power thus to restrict and bur-then the free intercourse of trade between the people of Missouri and the people of her sister States or of the world ?

Can the legislature, for revenue purposes, impose upon goods introduced into the markets of Missouri from beyond her limits, other and different and higher taxes than they impose on the same kind of goods produced, grown and manufactured in the State? If these questions can be answered in the affirmative, then there are other propositions important to be looked at. The power to lay upon the foreign article the discriminating burthen of one cent additional tax above the general tax rate of the State, establishes the power to add the second cent, and so with the third. Discriminating taxation is restrictive in its effects on the traffic in the thing that is thus taxed, and the restriction which a small discriminating tax produces becomes exclusion when you raise the discriminating tax high enough. The power, therefore, to impose upon the beef, pork and lard of our sister State of Illinois, when introduced here for sale, a tax or duty not paid on the sale of these articles produced in Missouri, is a power to exclude in toto from the channels of commerce in this State all these foreign articles ; of course all other foreign productions can be expelled and driven out of the State in the same way.

Has, then, the legislature of the State of Missouri the power to lay an embargo on trade between her borders and the rest of the world? This proposition has not been asserted as the ground on which the State rests her cause, but after the best reflection I have been able to give to the views which she seeks to maintain, I am unable to see how the State, with the course of reasoning here insisted on, is to stop short of this position.

The appellants (the defendants below) resist both the premises and *296 reasoning which would lead to such a conclusion. They have insisted that the statutes on which this indictment is found have been enacted in violation of the constitution of the United States, and they rely on the following clauses in that instrument as showing that the powers claimed by the legislature of Missouri are actually vested in the general government.

First. That congress shall have power to lay and collect taxes, duties, imposts and excises to pay the debts and to provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.

Second. To regulate commerce with foreign nations, among the several States and with the Indian tribes.

Third. No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation of commerce or revenue, to the ports of one State over those of another, nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another.

Fourth. 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 proceeds of all duties and imposts laid on imporfs or exports by any State, 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 congress.

The question arises, what is commerce? We are informed by Justice Story, in his commentaries on the constitution, vol. 2, page 506, that it is ‘traffic,’ ‘buying and selling,’ ‘interchange of commodities,’ and that it includes navigation and intercourse.

We are also informed by the same author, on the same page, that to regulate comm-rce is to prescribe the rules by which commerce is to be governed.' It will be readily perceived, therefore, that all the foregoing provisions of the federal constitution concern the subject of commerce, and are intended, in one way or other, either to grant or restrict the power of controlling or interfering with it; and after considering these full and explicit provisions there would appear to be little room to question that the discriminating tax imposed by the statutes under consideration on foreign merchandize, is a regulation of commerce on the part of the State in the proper meaning of the federal constitution— and that the regulation is attempted to be made, not merely of commerce between the States, but with foreign nations. The congress of the United States, by virtue of duties on imports, regulates commerce, in this very way restricts and diminishes the amount of importation», *297 expels or inyites trade to the Union, and protects home industry and' manufactures.

All this is done by force of a discrimination in the amount laid on articles of trade. Tariffs, in the regulation of trade, are more potent engines than armies or navies. Their silent but mighty influences are felt in every citizen’s private dwelling, extend over seas and oceans, and reach to the ends of the earth. This is a truth well known to, and inconstant employment by all civilized nations. Nor are these, simple facts and principles at all controverted by the counsel for the State in this case. They admit that congress has the power to regulate commerce with foreign nations, and between the States, and that these acts of the Missouri legislature are regulations of commerce, but they insist that the same power also belongs the States, and may be exercised by them where congress has failed to pass any law on the same subject on which the States attempt to legislate. In other words, that the power to regulate commerce is in a manner concurrent. The congress can take up and grasp the whole, but not doing so the States may take up and appropriate what congress neglects or prefers not to exercise.

I will not deny that there are jurists in this country who have expressed the opinion that the State government possessed the power to participate with congress in the regulation of commerce, and it has been sometimes inferred that the power to regulate commerce vested in congress, was dormant and inoperative until exercised by congress, and in the meantime the power returned to the States to be employed by them. But it is believed that such opinions have always been thrown out in cases where some plainly acknowledged State power was to be upheld, and which was confounded in the mind of the writer with a regulation of commerce, when in fact no such thing was in issue. Now, I have never doubted the power of the State government to do many things which more nearly or remotely concern the subjects and operations of commerce. The power of the State authorities to protect the lives of persons engaged in the trade within its borders, to preserve health or morals, to protect property, promote education, punish crime, restrain practices and habits leading to vice, to make internal improvements by constructing roads, dams, bridges, canals, wharves, ferries, •&e. To raise revenue by taxation for these purposes or any others ap-pertaining to the most ample and liberal police power requisite for the internal government and prosperity of the State, is inherent in its sovereignty, and is as well established by the dictates of reason as the authority of adjudged cases.

But, when a State is employed in the exercise.of one of these powers, *298 although the instrumentalities she may bring to bear may occasionally conflict with the operations of commerce, stilt the State is net “regular ting commerce.5’ I will illustrate: When a cargo of beef is landed in the city of St. Louis, and the State officers require it to be destroyed, because it is putrid, they are regulating health, not commerce. But if the same beef were sound, and was forbidden the market, merely because it was designed to prevent competition in the traffic in that article, it would be a regulation of commerce. In both cases, we perceive that beef as a subject of commerce, has been interfered with, but in one case the purpose was to protect the health of the community, and was constitutional, and in the other the object was to regulate commerce, and was unconstitutional.

Many adjudged cases have been referred to, and relied on by counsel, as asserting the power here contended for on the part of the State, But, on careful examination, it will be found, as I think, that they rest on nothing but the general police power which has been already fully conceded. I will briefly notice some of these cases: In the Commonwealth vs. Kimball, 24 Pick., 360—a statute of Massachusetts, forbidding the sale of all ardent spirits in less quantity than 28 gallons, on pain of $20 fine, and providing that noJicensé should be issued without a certificate of the selectmen as to the good moral character of the applicant, and that the public good required it, and the payment of $1 to the clerk as a fee for issuing the license, was adjudged no violation of the constitution of the United States, because the said statute (say the court) fell within that of powers necessary to the regulation of the police, morals, health, &c., of the community. In Breed vs. Commonwealth, 4 Pick., 460—a statute athorizing the building of a bridge over a navigable stream, was declared constitutional, as in affirmance of a power to authorize improvements required by convenience and necessity of the people. In Beall vs. State, 4th Blackford, 107—a statute of Indiana, was pronounced no violation of the constitutipn of the United States, which provided that no person should vend any merchandize not the product of the United States, without a license, on pain of $100.

It does not appear from anything in the case, what the tax on the foreign article was, or whether it exceeded the tax on the domestic article or not. The court say, “the act does not interfere with the power to ‘regulate commerce.5 55 “It contemplates no restriction,55 “imposes no burdens on commerce,” “nor can it be tortured into a transit duty.” There is nothing in the caseto countenance, ever so remotely, the idea of a discriminating tax on foreign productions over and above the do *299 mestic production. In 3d Smedes and Marshall’s Rep., 585—an ordinance of the city of Vicksburg, levying an ad valorem tax on- sales of produce by flat-boatmen in the city, and imposing fifty dollars fine for non-payment, was declared valid. In this case the question was not whether the foreign article could be burthened with a discriminating tax, tending to expel it from the State, but whether it could be taxed at all, the flat-boatmen insisting upon trading and selling their goods in the State of Mississippi, free from all taxation whatever. The court say, “the State has power to tax persons and property within its limits. When a citizen of Ohio comes into this State and sells his merchandize, there is no reason why he should be exempted from the operation of the State laws.” In 4 Dev. and Bat. North Carolina Rep., 320—an act prohibiting the sale of ardent spirits near a meeting-house or a place of divine worship, without license, was valid, as being in support of good morals. The case in 13 Serg. and Rawle is much like that in Blackford, and cannot be made to prove more than the mere taxing power of the State. It does not show there was any discrimination in favor of domestic articles, and it is asking quite too much to presume there was. Ingersoll vs. Skinne, 1st Denio 640, the question was, whether a license act not discriminating in its burthens between foreign and domestic liquors, was valid: it was very properly held to be so. In Raguet vs. Wade, 4 Ohio, 107, the tax was on all persons trading in foreign or domestic goods within the State. The law was upheld on the simple ground of a power in the State to tax all property for revenue, and not on any power to levy a discriminating or restrictive tax. The court say, the amount of the tax upon the capital (of the merchant) bears a just proportion to that upon land and almost every species or property in the State. The State power to tax must be taken with the limitation; that it is not an impost, or duty on imports or exports, and that it does not conflict with the power of congress to regulate commerce. The power of the State to tax its own cititizens, or their property, within its jurisdiction, while it is admitted to be sacred, cannot be so exercised as to obstruct the operation of an act of congress, or defeat the constitutional right of congress, to “regulate commerce.” In Perry vs. Torrence, 8 Ohio 521 , the question was, can the State cause the owners of steamboats employed on the Ohio river, and Lower Mississippi river, but occasionally touching at Cincinnati, tobe taxed therefor. The court held it might, and declared it to be a “fundamental principle of taxation, that the property of all citizens be made to contribute as equally as possible to the public burthens.” The court declare that the act in question was probably framed with the purpose *300 of attaining that great object, as it imposed a general tax on stock of all descriptions. Here, again, is the absence of the discriminting feature.

But the decision, which has been probably more strenuously relied upon by the State, is Nathans vs. State of Louisiana, 8 Howard, 73 .. Nathans was indicted under a law which required every “exchange broker” in Louisiana, whether dealing in foreign or domestic bills, to pay a tax of $250. There was no discrimination, no exemption in the case, all were taxed alike. Nathans’ counsel contended that, as he dealt in foreign exchange, he was exempt from all taxation, but the court ruled otherwise. The court in this case, remark, “No one can claim an exemption from a general tax on his business, within a State, on the ground that the products may be used in cpmmerce.” But what similitude is there between the case at Bar and Nathans? He was taxed like every other person dealing in exchange in Louisiana, and was subjected to the same burthens as other citizens engaged in the same avocation, and no more. Had he been taxed 20 or 40 cents on the $100 worth, where other brokers were taxed nothing, had all foreign capital in his hands been subjected to a heavy discriminating bur-then, and crippled in its employment, or expelled the State, the cases would have been moz-e alike.

The next case is Austin’s, (10 Missouri Rep. 591,) and claims For the legislature of Missouri the power of placing under restrictions any trade or profession whatever. It is by no means necessary to call in question the correctness of that doctrine. Grant that such a power exists, whenever it 'is the general policy of the State to exercise it. It is enough, that the trade in the articles mentioned in this indictment, has not been abolished or restricted. On the other hand, the policy of the State would seem to encourage and promote the traffic, when produced at home, by means of the very law we are now considering. The case, therefore, is not in point.

The case of the Black Bird Marsh Creek Company vs. Wilson, 2 Peters, 250 , involved the constitutional power of a state to authorize tine building of a dam, &c., and when the opinion of the court is construed with reference to the subject before them, it cannot be made to establish more than the power of a State, to regulate improvements, when no intention is indicated thereby to interfere with commerce.

In the celebrated cases, known as the License Cases, in which the statutes of New Hampshire, Massachusetts and Rhode Island, were called in question, the matter for adjudication was, whether these States had the power to restrain the use of ardent spirits by laws, in which no discrimination was made between foreign and domestic liquors, no tax *301 was imposed at all, nothing required to be paid, over the fees for issuing the license, was in violation of the constitution of the United States— and it was held no violation; the decision resting on the broad ground of the police power of the State to protect the morals and good order of its inhabitants. Í think I may say, that not one of the foregoing cases can bring any legitimate support to the statutes now under consideration.

I belive it should not be doubted that every one of these is merely in affirmance of the police power; and if it be true, that in some instances the proper distinctions were not made by individual judges, cr remarks were thrown out, tending to confound such powers with the power to regulate commerce with foreign nations and between the States; and thence deduce the consequence of concurrent jurisdiction in both governments over these great and delicate interests; it must yet be observed, that these sentiments have found utterance only on questions of the poliee; and it will be time enough to regard them as authority when they have been applied to regulations of commerce, properly as such, and received the judicial sanction of the courts of the last resort.

If the State of Missouri can restrict or expel the productions of other States from her borders, they can retaliate, by similar enactments, against her productions; and to suppose they will not do so, is to disregard the dictates of experience.—2 Story’s Const. 511. They will do so, and that speedily, and the effect of their opposing regulations and retaliative measures, will lead to consequences which no friend of this country can desire to see.

It may be proper here to remark that there is no clause in the Federal Constitution the history of which is more distinctly traced than that which gives to the general government the power to “regulate commerce.” The want of such a power in a common head, to be employed with energy and unity of purpose, was the bane of the confederacy. Mr. Madison says, (Papers 129,) “The want of authority to regulate commerce had produced in foreign nations — particularly Great Britain —a monopolizing policy injurious to the trade, of the United States, and destructive to their navigation.” “The same want of a general power over commerce lead to an exercise of the power separately by the States, which not only proved abortive, but engendered rival, conflicting and angry regulations.” 'The States having ports for foreign commerce taxed and irritated adjoining States trading tl rough them, us New York, Pennsylvania, Virginia and South Carolina. “Some of the States taxed imports from others, as from Massachusetts, which complained in a letter to the Governor of Virginia, and doubtless to those *302 of other States. In sundry instances, as of New York, New Jersey, Pennsylvania and Maryland, the navigation acts treated the citizens of other States as aliens.”

When it had become manifest that the existing condition of commerce would not only lead to a dissolution of the confederacy, but probably to bloodshed, a convention of delegates was held at Annapolis, under a calling of the legislature of Virginia, whose duty it was made to “examine the relative situations and trade of the said States to consider how far a uniform system in their commercial regulations might be necessary to their common interest and permanent harmony.” Madison Papers, 112, 113.

The deliberations of this convention, which met to discuss the single subject of commerce, lead to other movements, that finally brought about the assembling of a greater convention, and the entire re-organization of the government into its present form.

This thing of imposing duties on the productions of sister States was then regarded as a part of commerce. This appears by the proceedings at Annapolis and in the debates of the. convention, and the whole cotemporaneous history. It is admitted in this case by' both parties to be such. When, therefore, the proposition to give to Congress power to “regulate commerce with foreign nations, and between the States,” passed by the convention without a division and without any qualification or language sufficiently broad as to vest the whole power, I am compelled to believe that such was the intention. 2. Story Const. 508.

Chancellor Kent, 1 vol. Com. page 269, lending his sanction to an opinion of Justice Story, informs us, “That the commercial system of the United States has been employed sometimes for the purposes of revenue, sometimes for prohibition, sometimes for retaliation and commercial reciprocity, sometimes to lay embargoes, sometimes to encourage domestic navigation and shipping and mercantile interests by bounties, discriminating duties by special preferences and privigeles; sometimes to regulate intercourse, with a view to mere political objects, such as to repel aggresiion, increase the pressure of war, vindicate the rights of neuti’al sovereignty; and in all these cases the right and duty have been conceded to the national government by the unequivocal voice of the people.”

Now, conceding a concurrent power in the States with the general government to interfere in all these important matters, we arepexmitted to obtain a startling view of the extent of the authority which is claimed for them in this cause. That such powers should belong to the general government, seems to be as easily perceived on the one hand, as it is *303 -difficult to imagine on the other, to what end they could be rationally •employed by the States under our present general Union.

To return again to the language of the constitution, when it declares that Congress shall have power to ‘‘regulate commerce,” I wish to he informed by what rule of construction it is that part of the power to .regulate is retained by the grantors ? If a mere agency is created, then •all the power is retained in one sense, for the agency may be annulled at pleasure; but if anything is definitely granted, everything embraced in the descriptive words of the grant is gone. The regulation of commerce is the thing granted, not in part by the descriptive words, but in whole; then the whole regulation is surrendered.

In the ease of grants of power touching ‘naturalization’ and bankruptcies, asad the grant of power touching the organizing of the militia, ■grants made in the same section, and sometimes relied on as tending to justify the anomalous assumption of a concurrent power in congress and the States to regulate commerce, it will be seen that in neither of the eases is the grant made in the general, unqualified terms employed with reference to the commerce regulating power. In neither case is the whole power given in terms, but in each instance there either are ¡limitations on the grant itself, or reservations taking back a part of the power.

It seems to me not only plain that the power to “regulate commerce” was intended to be given to the exclusion of any interference by the States, but that this purpose has been indicated by all the other provisions on the same subject.

Commerce is regulated often, by the levying of taxes, duties and imposts. This the convention understood very well, and not being willing that the commerce power which they had given to congress should be abused by unequal legislation, it was provided that congress, in laying these burthens, should make them uniform.

The members of the convention had seen enough of conflicting and unequal duties, under the confederacy, not to be suspicious lest dishonest combinations might be formed, and unequal duties assessed, on different sections of the country, they laid the injunction, therefore, on that party which was clothed with the power to act.

If the States retained this power of levying taxes, duties and imposts, it must be seen at once there never could be uniformity, and the restriction on the power of congress is vain and nugatory.

Again, congress is restricted in its commerce-regulating .power ¡¡a this — “no tax or duty shall be laid on articles exported from any State.” *304 If the States hold a divided jurisdiction with congress in regulating, exports, how abortive this effort of the convention to tie up the hands of congress, under the evident impression that congress was the only agency whose action was feared in that behalf.

Again, no preference shall be given by any regulation of commerce or revenue, to the ports of one State over those of another, nor vessels bound to or from one State, be bound to enter, clear or pay duties in another. These restrictions on the power of congress, tying up its bands, in the use of the power to regulate commerce, which had been given to it, guarding assiduously and carefully against abuses, which it was feared might creep into its administration of the commerce regu-ting power, which had just been transferred from thirteen quarreling and almost belligerent States to congress as a common depository of a power which they admitted themselves incompetent to wield; and yet we are told that congress was never vested with more than a concurrent power over the subject; that the States retained aright to legislate on every matter which congress omitted to legislate upon, and are at perfect liberty in the first instance, to do all these tilings, which the convention so solemnly declared that congress should never do.

Let it be conceded for a moment that the power is concurrent: a State, then, is at liberty to cause vessels belonging to a sister State to enter, clear and pay duties therefor in her ports. Now let us suppose that congress neglects or refuses to interfere — the law is valid — the courts must enforce it, and the wishes of the convention so clearly expressed, that congress should never require such a thing to be done, are utterly defeated.

This is only one of the many singular consequences growing out of a concurrent power.

There are other views enforcing still more clearly the doctrine that tiie power is exclusively in congress. The 2d member of the 10th section of the 1st article U. S. constitution, provides in substance—

1st. That congress may consent to a State’s laying imposts or duties on imports or exports.

2d. That congress may consent to a State’s laying a tonnage duty, unless it can be shown that the levying of tonnage duties and impost duties on imports and exports are regulations of commerce.

I am entirely at a loss to conceive why, with a concurrent power in the State to regulate commerce, it was necessary or proper to introduce these stipulationspnto the constitution. A State was not bound to wait for the consent of congress, but might act as it pleased, and if congress *305 never repealed its enaetment, the courts would have been obliged to enforce it. '

There are practical difficulties in the doctrine of a concurrent jurisdiction, as contended for, which I have been unable, after most anxious reflection, entirely to reconcile either with the philosophy of legislation or the public convenience.

It is said that the States have the right to legislate where congress has not legislated. Now, suppose that congress should feel it to be their duty, after examining thoroughly the condition of trade between the States or foreign nations, or after looking at the traffic in a particular article, say salt, to do nothing, but leave it to pursue its course; or after passing a law to regulate the trade between Missouri and New Mexico, resolve to pass no law in reference to the trade between Ohio and Kentucky. Is there not often as much effected by not acting, as by acting? I have, myself no doubt of the fact; and I regard a prudent forbearance to interfere, in many cases, quite as conservative as a contrary course. The father who, corrected his child yesterday has not ceased to exercise the parental power because it is omitted to-day,, nor has that power necessarily become dormant, or ceased to exist.

In the manifold relations and highly delicate nature of the commercial interest of this country, it would be no small difficulty for the congress of the United States effectually to watch the progress of legislation by so many different sovereignties, and apply with lequisite wisdom and dispatch the necessary cerrective remedies.

Troublesome and annoying as such a tax would be, it is yet more incomprehensible how the States can be supposed so to administer the commerce regulating power as to cause all duties to be uniform throughout the United States, or to lay down a navigation and tonnage system in which no preference should be given in the ports of one State over those of another, nor do I yet see how they are to agree lipón any common commercial system of regulations for the Indian tribes.

But this very question has been several times before the supreme court of the United States, and has been thoroughly examined. In the case of Gibbons vs. Ogden, 9 Wheaton’s report, 196—the matter in issue was whether the power to regulate commerce with foreign nations and among the several States, was exclusively in congress. That court decided that “the power vested in congress was complete within itself — might be exercised to its utmost extent, and acknowledged no limitations, other than those prescribed in the constitution itself. That it was vested in congress as absolutly as it would be in a single government,” page 197. “When a State proceeds to regulate commerce *306 among the several States, it is exercising the very power granted to congress,” page 199. Mr. Justice Johnson, in a separate opinion, declared that the judgment of the court had his entire approbation,page 222. in the same opinion, he declared, that the States could not so exprcise their power as to restrain the free intercourse between the States. In Houston vs. Moore, 5 Wheaton, 23 , the supreme court of the United States say: “They are altogetherincapable of comprehending how two distinct wills can, at the same time, be exercised in relation to the same subject, to be effectual, and at the same time compatible withi each other.”

In Holmes vs. Jennison, 14 Peters, 570 , the opinion was delivered by chief justice Taney, and established, “that all the powers which relate to foreign intercourse, are confided to the general government.” And, if there is no error in the judicial tribunals, the “intercourse” is “commerce;” and if there is no distinction as to the degree and kind of power granted to congress to regulate commerce between the States and that which is granted to regulate it with foreign nations, all the powers which relate to commerce between the States, are also vested in congress.

In Groves vs. Slaughter, 15 Peters, 504 , Justice McLean delivered the opinion of the court, again affirming the doctrine of exclusive power in Congress, as laid down in Gibbon vs. Ogden, above cited; and that no part of the power to regulate commerce could be exercised by a State.

Mr. Justice Baldwin, in the same case, said: “The power of congress to regulate commerce among the several States, is exclusive of any interference by the States, and has been, in my opinion, conclusively settled by the solemn opinions of this court; nor can there be any adjudications of this court considered authoritative if these are not.”

In Brown vs. Maryland, 12 Wheat. 448 , it was adjudged by the court that the power to regulate commerce was exclusively vested in congress; and extended to the whole subject — meaning, the whole subject of commerce, properly speaking. Justice Thompson dissented from the balance of the court.

In this case, as well as that of Gibbons vs. Ogden, 9 Wheat., the opinions of the court were delivered by chief justice Marshall, who discussed the whole subject with an amptitude and force of reasoning, and a copiousness and variety of illustration never since surpassed in any adjudications of that court, when the same subject has been under consideration.

*307 I am satisfied that the doctrine of these cases was correctly laid down, and that it disposes of the case at the bar.

It has been contended here, that the opinions of the same court in the License cases, 5 Howard, and in the Passenger Cases, 7 Howard, have established another doctrine inconsistent with that of Gibbons and Ogden, and Brown and Maryland, but I am not certain that this position is tenable.

In the License cases, the question was not before the court, but I admit it was discussed by the judges. The cases were decided, and the statute of the States pronounced constitutional, on the ground of the police power in a State to restrain the sale of ardent spirits, for the sake of peace and good order. ' No such question, as whether a State may-use its taxing power or any part of its police power, to discriminate against the productions of sister States, or foreign nations, or Indian tribes, was to be decided; and construing the several opinions of the members of the court, with the matter before them, I not only find no fault with them, but am satified, that even in the opinion of some of those members of that court, who insisted on the concurrent power to regulate commerce, the law now under discussion before this court would be deemed unconstitutional. And I may here remark generally, of nearly all such members of that court, that it will appear from their opinions, not only in the License Cases, but in the Passenger Cases also, that while they make scarcely a distinction between the commerce regulating power and the police power, they neverthless concede that the power óf a State to regulate commerce, which they contend for, is not co-extensive with the subject, but confined and limited within a narrow bound.

Thus in 5 Howard. 516, Chief Justice Taney, laying down what he considers the limits of the State power of taxation, uses this strong language :

“ Undoubtedly, a State may tax its own citizens, in proportion to the amount they respectively are worth, and the importing merchant is liable to the assessment, like any other citizen, and is chargeable accordyig to the amount of his property, whether consisting in money, engaged in trade or imported goods which he proposes to sell, or any other property of which he is owner, nor can this affect the price of the commodity to the consumer, since foreigners, as well as citizens of other States, who are not chargeable with the tax, may import and sell,” &c.

In page 579 he says “the controlling and supreme power over commerce with foreign nations and the several States, is undoubtedly conferred on congress, but-in my judgpent the States may nevertheless, *308 for the safety and convenience of trade, or the protection of health of its citizens make regulations of commerce.”

It will be remembered it is on this ground of health and morals, &c., that the learned judge rests the decisions of the License Cases.

The above remarks of the Chief Justice are nearly co-incident with those of Mr. Justice McLean, who denied the concurrent power, when he says, 5 Howard, 592 :

‘‘Under pretence of police regulation, a State cannot counteract the commercial policy of congress. The State cannot, with a view to encourage local manufactures, prohibit the use of foreign articles, or impose such a regulation, as shall in fact be a prohibition. But it may tax such property as it taxes other and similar property in the State, either specifically or in form of a license.”

Mr. Justice Daniel thought that the foreign article ought to be subject to State taxation, in common with all other property of the same citizens. 5 Howard, 612 .

In the License Cases, so far as the taxing power of a State was brought into view, one question was, can the State tax it at all? The point decided was, that it could tax it, as other property in the State was taxed.

Here the question is, can the State tax the foreign article differently and by a discriminating tax which amounts to a regulation of commerce unconnected with any question of the State police. The difference is important. In the Passenger Cases the question of the exclusiveness of power in congress to regulate commerce with foreign nations, and between the States was directly up for decision ; as was, also, the nature and extent of the State taxing power in connexion therewith. Justice Woodbury contended again for the concurrent power in the States and general government, as he had done in the License Cases, but it will be seen that on a careful examination of his opinion, that he does not claim a power to regulate commerce in the State co-extensive with the subject.

It will appear that he claims a power in tire State to regulate only some things in connexion with commerce, and though he does not distinguish between the commerce regulating power of the general government, and the police power of the State in principle, he is prepared to do so in practice, as the cases arise.

In 7 How. 529 , Passenger Cases, he says, (speaking of the State taxing power,) “sueh is the case of Turner vs. Smith, considered in co.n-.nection with this, collecting the same of its own citizens as of others’; *309 and to argue that the States may abuse the power, by taxing citizens of other States different from their own, is a fallacy, because congress would also be quite as likely to abuse the power, because an abuse would react on the State itself, and lessen or destroy this business through it, and because the abuse, instead of being successful, would probably be declared unconstitutional by this court, whenever appealed to.”

Again, on the same page, he intimates an opinion, that the clause of the constitution, which provides that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” ought “to protect the citizens of sister States from any legislation by a State which does not press, at least, as hard on its own citizens as those of sister States.”

But, on page 557, he employs the following language, remarkable, if in fact,, there be a real substantial difference of opinion between him and the majority of the court, as to the exclusive power of congress to “regulate commerce” in its proper sense. “There is nothing in the nature of much which is here connected with foreign commerce, that is in its •character foreign, or appropriate for the action of a central and single government; on the contrary, much that is entirely local; something, universal or required to be general or uniform. For, though congress is empowered to regulate commerce, and ought to legislate for foreign commerce as for all its leading incidents and uniform and universal wants ; yet to “regulate commerce,” could never have been supposed, by the framers of the constitution, to devolve on the general government anything except exterior intercourse with foreign nations, with other States, and the Indian tribes. Everything else within State limits was, of course, to be left to each State.” In this way much was meant to be left to the States, and much ever has been left, which partially related to commerce, when I say much was left, I mean concerning details and local matters inseperable, in some respects, from “foreign commerce,” but not belonging to its exterior or general character, and not conflicting with anything Congress has already done.

So far as reasons exist, to make the exercise of the commercial power exclusive, as on matters of exterior, general and uniform cognizance the construction may be proper to render it exclusive, but no further, as the exclusiveness depends, in this case, wholly on the reasons, and not on any express prohibition, and hence cannot extend beyond the reasons themselves; when they disappear, the exclusiveness should halt, “cessante ratione, cessat et ipsa lex.”

It nowhere appears to have been settled that this power is excluaiv* *310 in congress, so that the State can enact no laws on any branch of the subject; and whether conflicting with the acts of congress or not; on the contrary, the majority of the court, in the License Cases, 5 How. 604 , appear to have held that it is exclusive as to some matters connected in some degree with commerce.” It must not be contended therefore that Justice Woodbury asserts a power in the States to regulate commerce in all particulars where congress has not acted; on the contrary, there are reasons for holding that, in many cases, the States cannot interfere, and what these cases are will depend much upon his future opinion, as to whether the State ought or ought not, to act in the matter, as drawn from the peculiar nature of the cáse, when it arises.

Chief Justice Taney merely insists on the power of the State to make regulations of commerce, for the safety and convenience of trade, to protect morals, health, etc., all of which is conceded by the court under the police head.

In these Passenger Cases, the question was whether the State of New York had power to impose a tax of one dollar and fifty cents, on the master of the vessel, for each cabin passenger coming into the port of New York, by sea, from any foreign country ; and twenty-five cents for each passenger coming from sister States in coasting vessels ; and whether the State of Massachusetts had power to impose a tax of two dollars on the master of the vessel, for all alien passengers coming by sea into the port of Boston.

It was held by the court as follows: that the tax on passengers from foreign countries, was a regulation of commerce with foreign nations, and the tax on the passengers coming from sister States, was a regulation of commerce between the States — Justices McKinley, Grier, McLean and Wayne gave separate opinions, that there was an exclusive power in congress to regulate commerce, and that ipso facto, by virtue of the grant to congress of this power, these statutes are void. Mr. Justice Grier, however, after deciding that to tax intercourse with foreign nations, or between the States, challenges the power to exclude this intercourse altogether, and thus thwart the policy of other States and the Union, was a violation of the constitution, also insisted that < Ongress had regulated commerce between the States and with foreign nations by willing that it should be free. In this opinion Mr. Justice Catron concurred; so that it is impossible to doubt what would be the opinions of the same Judges on the law now before us.

In the case of Brown vs. Maryland, that clause of the constitution which forbids the State to lay any duties or imposts on imports or exports, save what may be absolutely necessary for executing its inspec *311 tion law3, was also most ably reviewed. Nothing but the length of this -opinion already prevents me from transcribing it here, ipsissimis verbis, ¡the substance of an argument which ranks its author, in my estimation, the ablest Judge that ever sat on the bench of the Supreme Court of the United States; but'I am compelled to omit it. The point decided in the case in connection with this clause, may be stated as follows : In J821 the State of Maryland passed an act requiring all importers of foreign articles or commodities, by bale or package, of wine or rum, and all other persons selling the same by wholesale, bale ©r package, hogshead, barrel or tierce, before allowed to-sell, to take out a license, for which they were to pay fifty dollars, on penalty, &e. It was held to fee a violation of the constitution to require this license. It was decided that duties on imports was a mere tax on the act of importation, «or on the article imported. That though the tax was usually collected in advance of any sale by the importer, yet this was merely to prevent -evasions of the tax, and it was no less a duty when collected afterwards. That no object could be effected by taxing the act of importation, which would not be effected equally by a tax on the article after importation; that Brown, who was indicted for selling such articles by wholesale, he having imported them directly from a foreign country, was not obliged to pay the tax, the law being in violation of the above clause of the constitution.

The court held that while the goods remained in the hands of the importer, in the forms imported, they were not subject to any tax whatever, on the part of the State — that in that condition they were taxable by congress, but not by the State government, and that although it was competent to the State authority whenever imported articles have passed out of the channels of commerce, by being so altered as to become a portion of the common mass of the property of the State to tax' them by its local laws; yet, that until that fact had transpired by breaking the bales or otherwise divesting them of the distinctive character of the imports, they were subject to the taxing regulation power of congress, and not of the States.

Now, it must be admitted that there is great difficulty in laying down any fixed rule, adapted to all cases, which will sufficiently designate when imported goods have lost their character as such, when they have fully ceased to claim the protection of congress, and may rightfully demand the protection of State laws. The difficulty on this point, is not peculiar to the case before us, but is common to the entire subject matter of legal adjudication, where the condition of persons or property is *312 dependent on questions of conflicting jurisdictions,' embarrassed by questions of intention.

But it seems to me, tiie legislature of Missouri has relieved the ease of any difficulty on this head. They have signified their will, that no goods, wares, or merchandise, the production, growth, or manufacture of any place out of the limits of Missouri, shall ever mix with the common property in this State; shall ever be placed on a footing with other property in the State, so long as it remains in the merchant or grocer. They have denounced it as separate in its nature ; as worthy of heavier burthens, and a peculiar restrictive system of taxation, known to no other property in the State, and all this because it is foreign; lias been imported into theTState; either from foreign nations or from sister States. While they so designate it and treat it, what right have they to say it has mixed with the common property of the State ? When “it has so mixed, it has ceased to be foreign,” says Judge Marshall. But our legislature says it is foreign, and they tax it as foreign. Then they ought not to be allowed to tax it as mixed. It is conceded at the bar, that if the twenty cents were laid upon the act of importation, it would be void, or if it were laid on the imported article, and secured by a,lien on the article, it would be a duty on the import and void. Now I am unable to perceive, if this be so, how the holdng up the tax awhile, but laying on and collecting it at the end of a short time without a lien, can make it valid. Forms here are nothing, substance everything.

My opinion, then, is, that the tax imposed on the property of the, appellants in this case, was for the reasons stated, repugnant to the constitution of the United States.

The question which has been raised on the State constitution, grows out of the provision in the Bill of Rights, which declares “ That all ’ property subject to taxation in this State, shall be taxed in proportion to its value.”

It would seem at the first statement to be perfectly manifest that the object of this clause was to render taxation equal — to cause the burdens of government to bear with equal weight, in proportion to taxable property, on every citizen. The inherent justice of such a rule evinces the same view. Nor does the history of taxation, often flagrantly iniquitous and arbitrary, both in England and America, at all tend to relieve the mind of the first impression naturally suggested on reading this provision of the Bill of Rights ; that it was intended to do just what it says — cause all property in the State, subject to taxation, to be taxed ir» proportion to its value.

It is insisted, however, that the cotemporaneous construction is. *313 against this understanding. (See act of legislature, Dec. 12, 1820.) Cotemporaneous construction has been sometimes relied on in such cases, and it may be proper to be looked to, where the language is doubtful and other rules of construction fail. But if constitutional enactments are to be made to bend solely to the rule of cotemporaneous legislative construction, it is believed that in many cases important principles might be entirely fritted away. Some of our most universally acknowledged constitutional principles at the present day were establi

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