# Crow v. State

> Supreme Court of Missouri · March 15, 1851 · 14 Mo. 237

URL: https://www.frixlaw.com/law-library/cases/7998592

## Case

- **Full name:** WAYMAN CROW v. THE STATE OF MISSOURI
- **Court:** Supreme Court of Missouri
- **Decided:** March 15, 1851
- **Citations:** 14 Mo. 237
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Birch
- **Judges:** Birch, Napton, Ryland
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7998592

## Opinion text

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 the leading principles involved, and the leading cases upon them decided by the federal judiciary.
Under our complex system of government, no task has been found move difficult or delicate, than that of defining the exact line of distinction between the powers of the State and federal governments. In some cases, the distinction is broad and obvious, but as we approach nearer to the line, it becomes more difficult clearly to define it, and fix the point where the power of the State ends, and that of the federal government begins. The general rule on this subject has been aptly and forcibly expressed by Judge Story, in Houston vs. Moore, (5 Whea. 48), and as that distinguished jurist has not been supposed to have any disposition to enlarge the powers of the States at the expense of any just right of the federal government, I prefer to adopt his views, expressed in his own language, as the basis of further investigation.
“The constitution containing a grant of powers in many instances similar to those already existing in the State governments, and some of them being of vital importance to State sovereignty and State legislation, it is not to be admitted that a mere grant of such powers in affirmative terms to congress does per se transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the States, unless where the constitution has expressly in terms given an exclusive power to congress, or the exercise of a like power is prohibited to the States, or there is a direct repugnancy or incompatibility in *327 the exercise of it by the States. In all other cases, not falling in the classes already mentioned, it seems unquestionable that the States retain concurrent authority with congress, not only upon the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principles of general reasoning. There is this reserve, however, that in cases of concurrent authority, where the laws of the States and of the Union are in direct and manifest collision on the same subject, those of the Union, being the supreme law of the land, are of paramount authority, and State laws, so far, and so far only, as such incompatibility exists, must necessarily yield.”
There are two provisions in the constitution of the United States which are thought to conflict with the act of our legislature to license and tax merchants. One is the clause which gives to congress power to regulate commerce with foreign nations, between the several States and with the Indian tribes. The other is that section whifijh prohibits the States from laying any duties on imports or expoj^@pexim#tjSm^as may be necessary to execute their inspection laws. u
To maintain a conflict between the law now ih!,quesJ;imiMndv|h4p. Pro“ vision of the constitution which gives to eongr^JTO$^powervo'ref|ulate commerce with foreign nations and between tire SUaies,rft.U,inBcapsary to determine that this law is a regulation of comVrce, either wüín foreign nations or among the States, and is repugnanCtü^pírtñwof congress touching the same subject, or that it is such regulation of commerce, and that the power over commerce is exclusively vested in the federal government. I deny both propositions.
Whatever diversity of opinion may be found among the Judges composing the present bench of the supreme federal court, in relation to the character of the power vested by the constitution in congress over foreign commerce and commerce between the States, an examination of the Late, cases usually called the License cases, (5 Howard,) will show that the deliberate judgment of that court is, that the power is not exclusive in congress,but concurrent with the States. Five of the judges distinctly announce their opinions, and base their judgment on that point. Judges McLean and Wayne being the only two who distinctly avow a different opinion, Judge McKinley apparently coinciding with them, and Judge Grier not having in these cases, or any other, that I am aware of, intimated any opinion upon the question. It is true that Judge Catron, in the subsequent cases, termed the Passenger Cases (7 Howard,) is found acting with the»majority, which included the judges who, in the license cases, held the doctrine of exclusive power, but his concurrence in the judgment is based solely on the ground that the laws of New York *328 and Massachusetts, then under consideration, were totally repugnant to and irreconcilable with the positive enactments of congress, and treaties made with foreign nations.
If, therefore, it be conceded, that the law of Missouri now in question was a regulation of commerce, among foreign nations or between the several States, it would not for that reason be deemed unconstitutional, unless its provisions conflict with some act of congress, passed on the same subject. It is not pretended that congress have passed any such law.
But this law is not, in my judgment, a regulation of commerce, either with foreign nations or among the States. That it was passed with no such object, — that the legislature which enacted it, entertained no such purpose, even remotely, I presume will hardly be questioned by any one. Can even a suspicion be entertained, that the legislature of Missouri, when they passed the act to license and tax merchants, had the most distant thought of crippling-the commerce of this State with her sister States, or of affecting it to any perceptible degree ? Unfortunately it may be for our State, we have no domestic manufactures to protect, and our agricultural productions need no protection. If the clause which exempts from the tax the domestic productions of the State, were stricken out from the act, the revenue of the State would scarcely be diminished to an appreciable extent, and as it now stands, does not affect perhaps a single merchant out of this city to the amount of a dollar. But, I readily concede, that law may be framed with honest intent, and for a legitimate purpose, and yet its effects may be illegitimate and unconstitutional, and if such a character can be fastened upon the present law, it must be declared void. To ascertain the object and bearing of a law, however, when its validity depends on the relative powers of the State and Federal Government, we are not to look at remote consequences, and because it may have an indirect operation upon commerce, therefore conclude that it is a regulation of commerce within the meaning of the federal constitution. Such a course of argument would annul a very large class of laws, found in the statute-book of our State, and every other State of the Union, and would effectually undertime the sovereignty of the State. The taxing power, especially, without which the State government would be but phantoms of sovereignty, would be essentially impaired, and to an extent never contemplated by the framers of the federal constitution.
It must be borne in mind, that the taxing power of congress and the power to regulate commerce are distinct and independent powers, not derived from the same source nor leading to the same results. The *329 power of Congress to tax imports does not spring from the power to regulate commerce, although we see obviously that a tax upon imports incidentally affects commerce, but it is derived from another clause in that instrument, expressly giving to congress the power to lay imposts, excises, &c. And the restriction, or rather, prohibition upon the States, which prevents them from laying duties or imposing taxes upon imports or exports, arises from an express clause of the constitution, and is not an inference from the fact that the power to regulate commerce had been given to congress.
It does not follow, therefore, that because the act now under consideration incidentally or remotely affects commerce with other States, it is, therefore, a regulation of commerce, within the meaning of the federal constitution. Judge Woodbury observed in the Passenger Cases (7 How:) “The fair exercise of powers rightfully belonging to a State, as the power of taxation, though connected often with foreign commerce, and indirectly or slightly affecting it, cannot, therefore, be considered, in any point of view, hostile, by their intent and origin, as regulations of such commerce.” In the same case, the Chief Justice declares that the taxing power of the State remains just where it before existed, except where it is expressly prohibited. “They are expressly prohibited,” he adds, “ from laying any duty on imports or exports, except what may be absolutely necessary for executing their inspection laws, and also from levying any tonnage duty. So far, their taxing power over commerce is restrained, but no further. They retain all the rest; and if the money demanded is a tax upon commerce, or the instrument or vehicle of commerce, it furnishes no objection to it, unless it is a duty on imports or a tonnage duty, for these alone are forbidden.” The same Judge reiterates the doctrine more emphatically in the following terms : “ The taxing power of the State is restrained only where the tax is directly or indirectly a duty on imports or tonnage. And the case before us is the first case in which the power has been held to be still further abridged by mere affirmative grants of power to the General Government. In my judgment, this restriction on the power of the States is a new doctrine, in opposition to the contemporaneous construction and the authority of adjuged cases. And if it is hereafter to be the law of this court, that the power to regulate commerce has abridged the taxing power of the States upon the vehicles or instruments of commerce, I cannot foresee to what it may lead; whether the same prohibition upon the same principle may not be carried out in respect to ship owners and merchandise in a way seriously to impair *330 the powers of taxation which have been heretofore exercised by the States.”
It will be observed that these remarks of the Chief Justice, foreshadowing the consequence of the doctrine against which he protested— consequences now no longer imaginary — point out the true position of the majority of the court upon this point, although falling from a Judge who was in a minority in rendering the judgment in the case. Judge Taney assumes that the conclusion to which the majority arrived could not be reached, without an assertion of the doctrine of exclusive power in congi’ess ove»- commerce; but in this, the result proved him to be mistaken, since Judge Catron, who was of the majority that gave the judgment against the validity of the State laws, agreed with him upon this point, and placed his opinion entirely upon the ground that congress had actually exercised the power upon the subject, and that the laws of New York and Massachusetts conflicted with laws and treaties of the United States, and must therefore yield upon any construction of the constitutional grant of power, whether exclusive or concurrent. We must therefore regard this position of the Chief Justice, concurred in, as it was substantially by Judges Woodbury, Daniel, and Nelson, as that of the majority of the court, Judge Catron’s assent to the judgment being based upon different grounds, and that Judge having also previously assumed the same position on this point in the License Cases.
In the Passenger Cases, the validity of certain laws enacted by the States of New York and Massachusetts was the question before the court. By these laws no alien passenger was permitted to land in the ports of these States, until the master or agent of the vessel paid the boarding officer two dollars for each person so landing. These laws were declared unconstitutional by a bare majority of the court, Judge Catron being one of that majority, and adhering still to the same doctrine, in relation to the nature of the general power over commerce vested in congress by the constitution, which he had maintained in the License cases. It is manifest that Judge Catron’s opinion decided the case, and that opinion, as I have heretofore stated, is based on the ground that these acts conflicted with laws previously passed by congress, regulating the introduction of foreigners into this country, and with treaties made with foreign nations, and were against the general scope and spirit of the entire legislation of congress on this subject. If Judge Grier’s general concurrence with Judge Catron, in this case, is to be understood as committing him to the reasoning as well as conclusion of the former, there are then six out of the nine judges composing the then bench, declaring that the power over commerce with foreign *331 nations, and among the States, is concurrent with the States, and that this power does not involve the taxing power — that the power of congress to tax imports is derived from an independent and different source, and its prohibition to the States arises from an express provision in the constitution ; and that the taxing power of the States upon the articles or vehicles of commerce is not affected by the grant to congress of the power to regulate commerce.
It would be superfluous to point out the distinction between the State law now in question and the laws of New York and Massachusetts, held to be unconstitutional in the Passenger cases. They are essentially dissimilar in all their features, character and object, and that dissimilarity is obvious and apparent.
The License Cases, (5 Howard) maintain the same doctrine with the Passenger Cases. Massachusetts passed an act which virtually prohibited the sale of spirituous liquors in many portions of that State, whether imported from abroad or from other States. Sales were prohibited in any case, except by license, and it was left to the discretion of certain State officers to determine whether a license should be granted or not. Such a law was virtually a total prohibition of sales, wherever public opinion favored it. Similar laws were enacted in Rhode Island and New Hampshire. These laws were held constitutional, and the judgment of the court was based upon the doctrine that the laws were in effect regulations of the internal commerce of these States' and therefore not an infringement upon federal authority.
It is to be remarked in these cases, that the chief justice directly admits the propriety of the decision in Brown vs. Maryland, and yet in the New Hampshire case, where a barrel of American gin was brought round from Boston and sold in the barrel, he held that the State could prohibit its sale. And of this opinion was all the judges. I shall hereafter advert more particularly to this New Hampshire case, as it principally concerns another branch of the question now under consideration, merely stating here, that the opinion of a majority of the courts in this case did not proceed upon an undefined and indefinable notion of a police regulation.
The decision in the License Cases was made in 1847, the court being constituted then as it is now. Can that decision be reconciled with the position' that the law of this State to license and tax merchants is a regulation of commerce and therefore void ? The laws of Massachusetts and Rhode Island, and New Hampshire, virtually prohibited the sale of an imported article of commerce — one which under the laws of the United States was authorized to be imported, and from the duties on. *332 which the general government derived a large revenue. Our law does not prohibit the introduction of any article of commerce whatever, nor has it any design or tendency to diminish importations either from foreign countries or sister States. The former laws were unanimously held valid, not upon the ground, as it has been assumed in the argument of this case, that they were police regulations or regulations to preserve the health or morals of the people of those States, but upon the broad ground, that if the laws were conceded to be regulations of commerce between the States, (which concession most of the judges denied,) they were nevertheless valid, since no law had been passed by congress conflicting with them. It is true, that Judge McLean placed his opinion principally upon the former ground, and probably others of the judges, who are in a minority upon the doctrine of exclusive or concurrent power over commerce, concurred with him, but the Chief Justice and judges Catron, Woodbury, Daniel and Nelson, expressly took the latter position.
The case of Nathan vs. Louisiana, (8 Howard) contains, perhaps, a more full exposition of the qualifications under which we are to understand this power to regulate commerce, than either of the cases which I have referred to, and is more analogous in its facts to the present case.
This was a revenue law of the State of Louisiana, enacting that every money or exchange broker should pay an annual tax to the State of two hundred and fifty dollars. An indictment was found under this law, and the defence was, that the business taxed was exclusively that of buying and selling bills of exchange, or instruments of foreign commerce, or commerce between the States, and that the tax was repugnant to the grant of power to congress on this subject. The court held the law to be valid. Judge McLean, who delivered the opinion of the court, said “The right of a State to tax its own citizens for the prosecution of any particular business or profession, within the State has not been doubted. And we find that in every State money or exchange brokers, vendors of merchandise of our own or foreign manufacture, retailers of ardent spirits, tavern keepers, auctioneers, those who practice the learned professions, and every description of property, not exempted by law, are taxed. * * Money is admitted to be an instrument of commerce, and so is a bill of exchange, and upon this ground it is insisted that a tax upon an exchange broker is a tax upon the instruments of commerce. What is there in the products of agriculture, of mechanical ingenuity, of manufactures, which may not become the means of commerce ? And is the vendor of these products exempted from State taxation, because they may he thus used? Is a tax upon a ship as property, which i* *333 admitted to be an instrument of commerce, prohibited to the States ? May it not tax the business of ship building, the same as the exercise of any other mechanical art? And also the traffic of ship-chandlers and others who furnish the cargo of the ship, and the necessary suppli s ? There can be but one answer to these questions. No one can claim an exemption from a general tax on his business, within the State, on the ground that the products sold may be used in commerce.” Again, he says, “the taxing power of a State is one of its attributes of sovereignty. And where there has been no compact with the federal government, or cession of jurisdiction for the purposes specified in the constitution, this power reaches all the property and business within the States which are not properly denominated the means of the general government, and as laid down by this court, it may be exercised at the discretion of the State. The only restraint is found in the responsibility of the members of the legislature to their constituents.”
“If this power of taxation,” he proceeds, “by a State within its jurisdiction, may be restricted beyond the limitations stated on the ground that the tax may have some indirect bearing on foreign commerce, the resources of a State may be thereby essentially impaired. But State power does not rest on a basis so undefinable. Whatever exists within its territorial limits, in the form of property, real or personal, with the exceptions stated, is subject to its lawá, and also the numberless enterprises in which its citizens may be engaged. These..are subjects of State regulation and State taxation, and there is no federal power under the constitution, which can impair this exercise of State sovereignty.”
This is the doctrine of the supreme court, given in the forcible and pointed language of a judge, who on the question relating to the extent of the power over commerce vested in the general government, has been uniformly in favor of its exclusive character.
I shall add no more on this branch of the case. It seems to be established, beyond all dispute, by the present supreme judicial tribunal of the general government, to which we look for authoritative expositions of the constitution and laws of the Union, that the grant of power to congress to regulate commerce with foreign nations and among the several States, is a mere affirmative grant of power, not exclusive in its character, not affecting in the slightest degree, the taxing powers of the States — that the federal government has an ample protection to a full and efficient exercise of this power over commerce, in the supremacy of its laws, .made in pursuance of the constitution over any conflicting State enactments, and in the total prohibition to the States of all power *334 to impose duties on imports or exports, or tonnage. These safeguards are sufficient and ample to secure a just and fair execution of the powers rightfully claimed by the general government, and to prevent all collision with the States. To require more, and by construction to claim that the taxing power of the States is only to be exercised on such conditions, and over such property as may not even incidentally or remotely affect foreign commerce, or commerce between the States, whether conflicting with any law of congress, or not, would be, in the judgment of the federal judiciary itself, destructive of all efficient State government. Such a construction has been properly disclaimed by that high tribunal. Its assertion might justly subject them to the imputation of converting themselves into what an eminent statesman termed a truly formidable “ corps of sappers and miners,” engaged in loosening the foundations of State sovereignty.”
I have not referred to the case of Gibbons vs. Ogden, (9 Wheat.) New York vs. Milne, ( 11 Peters, 102 ) and Wilson vs. Blackbird Creek Marsh Company, ( 2 Peters, 261 ,) for the reason that these cases merely assert the general principles, a practical application of whieh is more distinctly seen in the later cases. Nor shall I allude to the case of Brown vs. Maryland, (12 Wheat.) in this connection, that ease being chiefly relied on to support the second position taken on this branch of the ease, which I shall now proceed to consider.
The only clause in the constitution, in addition to the one already spoken of, supposed to conflict with the act of our legislature now under consideration, is the one prohibiting the States from taxing imports. As the arguments drawn from this clause rest almost exclusively upon the case of Brown vs. Maryland (12 Wheat.) it will be necessary to examine that case with some attention.
I shall not find it necessary to question the authority of this ease, so far as the points determined by it are concerned, but I may not deem it obligatory on me to sanction all the reasoning of the learned Judge who delivered that opinion. In doing so, I trust I shall not be found wanting in a due respeetfor the ability and learning of so distinguished and upright a jurist as the late Chief Justice Marshall. I shall but tread in the footsteps of his own successt rs, without venturing to discuss the subject as an original question.
What then is this case of Brown vs. Maryland, of which so much has been said in the present investigation ?
In 1821 the State of Maryland passed a law, “that all importers of foreign articles, or commodities, of dry goods, wares or merchandise, by bale or package, or of wine,-ruin, brandy, whisky, #nd other distilled *335 spirituous liquors, and other persons selling the same by wholesale, bale or package, hogshead, barrel or tierce, shall before they are authorized to sell, take out a license, for which they shall pay fifty dollars.” This law was held to be a tax upon imports, and therefore unconstitutional. The decision was, that an article authorized to be imported by Congress, continued to be a part of the foreign commerce, and therefore within the exclusive jurisdiction of the federal government, whilst it remained in the original bale or package, in the hands of the importer, and that no State, either by direct assessment or by requiring a license, could impose any burthen beyond what the laws of Congress did; but when the original package was broken for use or retail by the importer, and when the commodity passed from his hands into the hands of a purchaser, it ceased to be an import or a part of foreign commerce, and might be taxed for State purposes. '
Now, it must strike one as a little singular, that this decision is invoked in a case, where his honor, the Judge of the criminal court, held precisely the doctrine advanced by the supreme court, and struck out the 2d and 3d counts of the indictment in which the defendants were indicted as importers, for selling in the original bale and package.
How, then, is the decision in Brown vs. Maryland to affect the validity of this law to license and tax merchants ? The feature of our law mostly objected to, is that which exempts from taxation our domestic goods — but if the law was altered in that respect, and the domestic pr< duetions included in thestatement, would it be less obnoxious to the decision in Brown vs. Maryland than it now is ? If the license is now to be regarded as a direct tax, and that tax a tax upon imports, will it be any the less a tax upon imports by also taxing the domestic manufactures and agricultural products of our State? The case of Brown vs- Maryland held that the importer could not be taxed for the privilege of selling his imports, whilst they remained in the shape imported, and in his own hands. If he is also taxed for selling domestic productions as well as foreign articles, how does this help the validity of the taxation upon the foreign articles? In my judgment, there is nothing in the decision of Brown vs. Maryland, confining it to the facts before the court for adjudication, which touches the discriminating feature of our State law. We must go into the reasoning and dicta of the learned Judge, to get a platform upon which to attack the discrimination or exemption.
“An impost,” says Judge Marshall, “or duty on imports, is a custom or tax levied upon articles brought into the country.” An import is a thing imported, and a tax upon imports is therefore a tax upon thing.* *336 imported. Now the monstrous consequences of following out this position are so apparent as to need no comment. Nobody pretends that a State cannot tax things imported, and no revenue law of any State in the Union was ever framed with reference to such a principle. Judge Marshall himself admitted that there was a point beyond which the principle could not be carried, and that point he fixed, not at the custom house, but in the warehouse of the original importer, and whilst the import was unaltered in form. The distinction is, at best, a very imperfect one, for there aie imports upon which the general government leT ies duties, such as horses, pictures, &c., to which the distinctions will not apply.
A right to import, according to Judge Marshall, implies a right to sell the thing imported; but he limits this right to sell to the original importer, and d@es not extend it to any subsequent vender. Nor does the right, in his opinion, continue any longer in the original importer than the import remains in its imported shape. If it is broken up, as he expresses it, or mixed up with the property of the State, this right ceases. So that so much ©f our revenue law as reaches imports from abroad, that have left the custom houses at New York, Philadelphia, Boston, or Baltimore, and are here in the hands of merchants who have purchased from the original importers, whether still in the box, bale, or package in which they were imported or not, is clearly unobjectionable, according to the opinion of Brown vs. Maryland. How is it with the domestic manufactures of other States, which have never been in the U. S. custom house, but are brought here for wholesale or retail? Judge Marshall intimated that such importations from other States would be within the principle, but it was not so held by the supreme court in the license cases. In the New Hampshire case, a barrel of American gin was brought from Boston to a port in New Hampshire, and was there sold without license in its original imported form. This sale was against the law of New Hampshire, and the court declared that law to be valid.
I am aware that in the argument of the case now before the court, this decision is said to have been based on the idea that the law of New Hampshire was a health law, or a law to preserve the morals of her citizens, and therefore within the competency of her legislature. And it is true that Judges McLean and Grier, and perhaps one or two others, placed their opinion partly on this ground; and Judge McLean further declared that the laws were not regulations of commerce, but that the license was a charge up.on the business or profession, and not a duty upon the thing sold; but this was not the ground upon which a majority *337 of the court placed it. On the contrary, the Chief Justice, together with Judges Catron and Nelson, expressly repudiated any such ground, ,and in this they met the concurrence of Judges Woodbury and Daniel, the two latter, however, going still further, and entirely disavowing the whole doctrine in the case of Brown vs. Maryland. Are not revenue laws as much police laws as health laws, or quarantine laws, or laws to promote public morals? By calling a law a police regulation, its real character is not altered. If it conflicts with the constitution or any law passed in pursuance thereof, its invalidity is not cured by calling it a police regulation. All laws relating to the internal concerns of a State, are police laws, whether they are designed to promote the health and good morals of the people, or to bring revenue into the treasury for the support of government. Those of the latter character are far more important, since without them the wheels of government must stand still, and all other laws remain unexecuted
In the New Hampshire case, as I before remarked, Judges Wood-bury and Daniel expressly repudiated the positions of Judge Marshall in Brown vs. Maryland. They held, with Judges Taney, Catron and Nelson, that the word police included all internal legislation of a State, and was not confined to mere health laws, or laws to promote morality, and that the validity of the laws in question did not depend upon any such distinction. They further held, that the right to import did not include a right to sell, regardless of State regulations, that the subject .of buying and selling within a State belonged exclusively to that State, and was a matter with which the Federal Government could not interfere. They denied that congress, when they allowed importations and derived revenue from duties upon them, also enacted that the importer should sell his articles in such quantities, at such places and at such times as they pleased, but that these matters depended upon State regulations, and that even a prohibition upon the sale was not a tax upon imports, or an interference with foreign commerce, since a man may still import for his own consumption or use. They deny that the laws of New Hampshire and Massachusetts are regulations of foreign commerce or commerce between the States, but declare that these laws simply determined the- mode in which a particular commodity might be circulated within their jurisdictional limits — a matter with which the Federal Government has no concern, and over which she has no control.
The Chief Justice, with Judges Catron and Nelson, admit the doctrine of Brown vs. Maryland, but yet hold that the New Hampshire law was not affected by it. They concede the law to be a regulation of *338 commerce between tbe States, but maintaining, as I have shown before, the doctrine that this power was only concurrent with the States, they hold it valid, because no law of Congress was infringed by it. Judge McLean held, that the owner of the property who purchased it in Massachusetts and transported it to New Hampshire, was not an importer within the meaning of .Brown vs. Maryland. So that, when we recollect that the case was one of an importation from one State to another of a home-made article, J-udge Marshall’s intimation in Brown vs. Maryland, that such a case would be within the principle therein decided, is manifestly overruled by six of the nine Judges.
I deem it useless to enlarge upon this point. The case of Brown vs. Maryland stands by itself — a decision rendered twenty-four years ago —nearly all its principles since doubted or over-ruled, and narrowed down, and frittered away, until its power for good or evil is gone. As a precedent, it will reach no case except just such, an one as itself was. It is possible, that if a State should now enact a law precisely in the language of the Maryland act of 1821, such a law would yet be pronounced unconstitutional by the tribunal to which such questions belong, but I hesitate not to ventui'e the opinion, that the doctrine will never be carried one jot or tittle further.
Having thus disposed of the case of Brown vs. Maryland, the decision in which has been strictly adhered to in the judgment given by the Criminal Court, I am not aware that any other leading case has been cited, having any material hearing upon this branch of the subject. A prominent idea seems to have pervaded the argument of those, who in the discussion of this ease, have maintained the invalidity of this law, because of its discriminating between foreign and domestic productions, which is derived from the danger which they apprehend from an abuse of the power of taxation by the States, whilst no fears seem to be entertained of any encroachments on the part of the Federal Government. They argue that, if the States can tax merchandise brought from other States, or from foreign countries, and yet be at liberty to leave their domestic productions untaxed, this power has no definable limits, and may he exerted to such an extent as to cut off all foreign trade or intercourse with our sister States. It would perhaps be a suf-ficent answer to such extreme cases, that the injury inflicted to the State herself by such legislation, would be an ample guarantee against its ever being attempted, and at all events that it will be time enough to determine such cases when they occur. But no such danger exists. No State can prohibit the introduction of foreign merchandise, if congress has authorized its introduction, but each State may regulate her *339 internal traffic according to her own pleasure. Each State can act upon an article of commerce after it has passed from foreign commerce, and become a part of the property of its citizens. Whether it can act upon the article after it leaves the custom house, and before it leaves the warehouse of the importer, or must delay taxation until the package is broken, or its form is changed, or it has passed from the hands of the original importer, is not material in this case, since the indictment before us after the second and third counts wore stricken out, did not charge any such sale. The point at which the merchandise would most naturally he considered as having become a part of the property of the State, is when the duties upon it have been paid, and it has left the custom house, and there is no longer any lien upon it for dues to the Federal Government. But the Supreme Court of the United States, at an early day, fixed upon a different point, and until that court chooses to say otherwise, there let it remain. By the tenth section of the law to license and tax merchants, all imported goods in the origina] package, box, &e., arc expressly exempted from the direct ad valorem tax, and it is probable that the omission to exempt them in the section providing for a license was inadvertent. At all events it does not affect the present judgment — nor would it materially affect the revenue, under the present law, if the exception was extended, as the Criminal t.ourt has extended it, to the act of 1849.
It will be seen that in discussing this branch of the case, involving the compatibility of our law with the federal constitution, my object has been simply to ascertain the present state of adjudications in the Supreme Court of the. United States touching the question. In discharging this task, I have found it necessary to allude more particularly to the opinions of individual judges than I could have desired, but this course, if it needs apology, will readily find one in the practice which of late prevails in that tribunal of delivering almost as many opinions as there are judges. To select, therefore, the passing remai’k of any particular judge, and assume it to be the opinion of that court, without first ascertaining how far it has been sanctioned by the majority, is only calculated to mislead. I have endeavored to avoid this, and have therefore spoken of opinions as being those of the court, only where a majority have concurred in them, and where such views of individual judges as seemed pertinent to this case are merely referred to for their intrinsic weight, hut not sanctioned by the whole court, or a majority of the judges, I have so stated them.
I have not offered any extended views of my own on this part of the ease. The question is one of federal cognizance, and it is to the na *340 tional judicial tribunals that we look for authority. Nor will time enable me to bestow even a passing remark upon the consequences which i apprehend trom denying to our legislature power to pass such an act as the one herein considered. With its expediency I have no concern-.
I am for affirming the judgment of the Criminal Court.
The deservedly high authority of Mr. Justice Woodbury having been referred to, not only here but elsewhere, as in contravention of the general conclusion at which we have arrived, it is deemed simply necessary to extiact from his separate opinion in the Passenger cases (7th Howard, h31) not on]y the pith and conclosion,bat as we apprehend, the substance of the conelii~ion beyond which no enlighted American jurist or statesman wouid be found to commit himself. We of course make no conmentary-simply denoting by italics the very exception which we have assumed may distinguish the case before us (under oui' peculiar constitution) from almost any which has previously passed the ordeal of the courts. Judge `W. says "The power of taxation, generally, in all independent States, is unlimited as to persons and things, except as they may have been pleased, by contract or ollsrwiae, to re'irict lhemsetvse." `i4o. also, Chancellor Kent states the true doctrine concerning the ~righ~s~ or the potters of the States, when speaking of them as exempt from the control of the United States, titus: "The power of State taxation is to be measured by the extent of State sovereignty, and this leaves to a State the command of all its resources, anti the unimpaired power of taxing the people and property of the State." it is trusted that it need scarcely agent be impressed, that this and kindred conceded authorities can have no inlelltgent applicition in a case like the, present, where the question (with the author of this opinion, at least,) is not between the State law and the constitution of the United States, but simply whether the people of the She themselves have aeon ñt, in their own oiganic law, to ptescrtbe a ;uude or basis of taxati ni, to the spirit of which the system of the law in quostion is not only palpably repugnant. but of which it may be tendered wholly destructive.
The first section of the fourth article of the revenue act of 1845, is in these words:'
“Thescveral county courts are empowered to levy such sum as inay be annually necessary to do fray the expenses of their respective counties, by a tax upon all property and licenses made taxable by law for State purposes ; but the county tax shall in no case exceed the State tax. orr the same subject of taxation, move than one hundred per centum for the same time ; but the county court ofSt. Lout? county is empowered to impose an additional tax, not exceeding nne twentieth of one per centum, if they deem it necessary, in order to pay jurors summoned in the sevt ral c mrts of said county ; which tax,-if imposed, shall be applied to the payment of jurors only.”
It might be as roatlily demonstrated that the mere injustice of tints enforcing the payment of even a concededly constitutional tax upon property designed solely for the consumption of other people, (and upon which they, of course, ultimately pay the whole tax,) by no moans stopssbort nith the extra tax thus authorised to this comity. As, however, the va-ious taxes which arc levied upon the same property by -he authorities of the city, are probably enough derivative from the municipal authority of the legislature herein before alluded to, that subject is, of course, beyond the scope of legitimate inquiry here, and might, therefore, have remained unadverted to, even thus brieflv, except as perhaps sufficiently suggesting the Inapplicability of a portion pf the argu ;ttf at which has been filed at the present term by the counsel for the State.
By reference to the digest of Mr. Geyer, containing a compilation of the revenue laws which were in force, at the time the convention was in session, it is seen that "all property then subject to taxa~ion~~ was not "taxed in proportion to its ~ Not only were many things 01 value, and which were of course under ihe protection of the government and the laws, wholly exempted from any of the burdens of government protection, but the inequality in respect to the things taxed was in many points of view glaringly and even ludicrously un- equal. Thus, while some lands were taxed sixty cents for every hundred arpens, and others twelve and a half cents for every hundred arpens, town lots, together with the houses and im- provesnents upon them, and dwelling houses in the country, were taxed thirty cents for every hundred dollars worth. Slaves above ten years old were taxed sixty-two and a half cents, whilst pleasure cairiages were taxed one dollar and a half for every hundred dollars at which they were valued. Stores, for selling and refajljnr niercliandise, were taxed fifteen dollars lot every six months, and pedlars fourleer dollars-the goods themselves paying no ad vdk- rem. in the constitution-the articles that did payan ad valorem tax having it imposed upon them in different proportions according to the discretion of the legislature or the county courts. It being with such laws as these before them, practically recalling the mole general history of unequal and oppres.. sive taxation already alluded to, that the convention wrote it down and signed it in heir that "all property,~ should Ube taxed according to its be respect- lutly enquired in connection with this merely verbal analysis-why else did the convention ernpJay the verb instead of the participle, todenote their meaning-the term "st~bfect," (or "liable,") instead of the term "subject~d~" (or "made to undergo,")-if they ihtendedto include only such property a~ the 1egisl~ture subjected tq taxation? Can philologist or grammarian sat&sfactoriiy answer even this? agreed upon by them and ratified by the people but to introduce a practical construction of the eonstituticn asserting the legislative power to restore the very system they sought to repress and forever interdict? Could this have been anticipated by those who only forbore to write it out ut once that "all property shall be taxed in propor tion to its value purely because there were several descriptions of land in the State and to he afterwards located which they were prospectively agreeing on the same (lay and an the same breath by their ordinance or compact with the general government they would not tdx. With this reason for the additional words "subject to can even a reasonable doubt be entertained but that they regarded "all " other property as "subject" or liable to taxatin and that in fact it was so? To hesitate or to doubt in reference to such a uropo. Sitioii is to our minds equivalent to the seemino distrust which recognizes the conclusiveness of no reasoning nor indeed of demonstration itself. Why else may it not be respect-lutly enquired in connection with this merely verbal analysis-why else did the convention ernpJay the verb instead of the participle todenote their meaning-the term "st~bfect (or "liable instead of the term "subject~d~" (or "made to undergo,')-if they ihtendedto include only such property a~ the 1egisl~ture subjected tq taxation? Can philologist or grammarian sat&sfactoriiy answer even this?
In the profound dissertation if M. De Tocquevilie, an eminent French author, upon the institutions of this country, he expresses the conclusion with equal force and wisdom, that “if the free institutions of America are to be destroyed, it will be owing to the tyranny of majorities driving minmities to desperation.’’ Of similar opinions are a number of the most eminent and disinterested English writers upon the same subject; and it may not, perhaps, he undefeiential or improper tp add, that the history and result of the political agitation through which the country has been called to pass’during the last few years, must have inclined the minds of most reflecting persons to the conclusion, that however much may be predicated upon the patrioti~m,fiaternalness and mere justice of political communities, there cun be no security equal to that of the constitution, ar.d hence no errors (even) so safe as those which may be committed in deference to its supposed restraints or guaranties.” “The world is governed too mvch.”
It may be incidentally remarked that ¡t is m this point of view alone, and m view of (he rendition of the judgment we propose, that whatever may be thought of Ihe policy of the amended revenue act of the 10th of March, 1849, in respect to money on hand, invested, due, &c., its provisions being equally applicable to all classes of citizens, and restricted simply to the general advalorem upon oiher property, the tax thus imposed seems to possess at least the sanction of sufficient seeming conformity to the constitutional rule, to be sustainable and sustained before a court which abrogates the license tax here in issue, purely because it is an unequal or discriminating one.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7998592. Public record. Not legal advice.