majority">Moore, Associate Justice.

The objections made by appellants to the validity of the taxes brought in question in this case are, that the law by which they are'levied, is repugnant to the fourth paragraph of the eighth section of the first article of the Constitution of the United States, which gives to Congress the power to regulate commerce with foreign nations, and among the several States and Indian tribes, and also to the second paragraph of section ten of said article, prohibiting any State from laying imposts or duties on imports or exports. And we feel constrained to hold, in conformity to the ruling of the Supreme Court of the United *390States in regard to statutes having similar provisions as that in tiie statute levying these taxes, that these objections must be sustained, though this conclusion is contrary to our own judgment as to the construction which should be given to the provisions of the Constitution of the United States referred to, and the statute by which these taxes are levied, or, rather, as to their proper relation and bearing upon each other.

The line of decisions in the Supreme Court of the "United States, which has finally led to the ruling by which we think we are controlled, if we are to follow its decisions upon such subjects, which now seems to be too firmly settled to admit of controversy, began with the case of Brown v. Maryland, 12 "Wheat., 419. In that case it was held, that an act of the Legislature of the State of Maryland requiring importers of foreign goods to pay a State license tax before selling such goods in the original form and packages in which they were imported, was a duty or tax upon imports, and could not be imposed by the State; that a tax upon the occupation of an importer was a tax upon importation; that it was impossible to conceal the fact that this mode of taxation was only varying the form without varying the substance.

Li the subsequent cases of Almy v. California, 24 How., 169; Crandall v. Nevada, 6 Wall., 35; Woodruff v. Parham, 8 Id., 123; Ward v. Maryland, 12 Id., 418; Railroad Co. v. Pennsylvania, 15 Id., 232; Railway Co. v. Richmond, 19 Id., 589, and many others, the views expressed in the opinion of the court in Brown v. Maryland have been sanctioned and approved. And in some of them a still more enlarged effect and greater control over State legislation is claimed to result from the provisions of the Constitution of the United States, which we have cited, than was insisted upon in that case. But in none of the cases decided by the Supreme Court of the United States, however, prior to the case of Welton v. State of Missouri, 1 Otto, 275, is there, in our opinion, an *391authoritative ruling of the court, decisive of the precise question presented by this case.

The statute of the State of Missouri, which gave rise to the case of Welton v. State, declared that persons who deal in goods, wares, and merchandise, not the growth, produce, or manufacture of the State, by going from place to place to sell them, are peddlers, and as such are required to pay a license tax, while for the sale in the same manner of articles grown, produced, or manufactured within the State, no such tax is imposed. The Supreme Court of Missouri held, as we think correctly, that the law simply imposed a tax upon an occupation; that the amount of it was not regulated by the value of the property or the amount of business transacted by the party upon whom it was levied; and hence it could not be regarded, in any proper sense, as a tax upon property; that it made no attempt to regulate inter-State commerce, and could not be justly held to discriminate against the products of other States. (55 Mo., 288.)

But an entirely different view was taken of the statute by the Supreme Court of the United States.

It was said by that court, when the case came before it, “ that the power which insures uniformity of commercial regulation must cover the property from hostile or interfering legislation until it has become a part of the general property of the country, and subject like it to similar protection, and to no greater burthens. If, a,t any time before it has become incorporated into the mass of property of the State or nation, it can be subject to any restrictions by State legislation, the object of investing the control in Congress may be entirely defeated. If Missouri can require a license tax for the sale, by traveling dealers, of goods which are the growth, produce, or manufacture of other States or countries, it may require such license tax as a condition of their sale from ordinary merchants, and the amount of the tax will be a matter resting exclusively in its discretion.”

“ The power of the State to enact a license tax of any *392amount being admitted, no authority would remain in the United States or in this court to control its action, however unreasonable or oppressive. Imposts, operating as an absolute exclusion of the goods, would be possible; and all the evils of discriminating State legislation, favorable to the interest of one State and injurious to the interest of other States and countries, which existed previous to the adoption of the Constitution, might, and the experience of the last fifteen years shows, would follow, from the action of some of the States.”

And the court, referring to the difficulty of drawing the line precisely where the commercial power of Congress ends and the power of the State begins, which had been recognized in Brown v. Maryland, say:

“Following the guarded language of the court in that case, we observe here, as was observed there, that it would be premature to state any rule which would be universal in its application, to determine when the commercial power of the Federal Government over a commodity has ceased and the power of the State has commenced. It is sufficient to hold now, that the commercial power continues until the commodity has ceased to be the subject of discriminating legislation by reason of its foreign character. That power protects it, even after it has entered the State, from any burthens imposed by reason of its foreign origin. The act of Missouri encroaches upon this power in this respect, and is, therefore, in our judgment, unconstitutional and void.”

If there is a difference between the act of Missouri and that by which these taxes are levied, the best reflection which we have been able to give to them leads us to the conclusion that it is .in degree,'and not in principle. We, therefore, as has been said, feel ourselves constrained to hold, that the statute under which the taxes complained of by appellant were levied, is unconstitutional and void.

It is insisted by appellee that, as appellants admit that they are engaged in the occupation of selling spirituous liquors, *393as well as that of selling vinous, malt, and other intoxicating liquors not the product of tins State, and, as there is no pretense that the law makes any discrimination as to spirituous liquors, they have no cause to complain. This would be unquestionably true, if the court could separate the constitutional from the unconstitutional part of the statute, so as to give effect to the former, without doing violence to the intention of the Legislature. But the tax for the license is indivisible. The license is for the exercise of a single and indivisible occupation, though different articles may he sold by persons to whom a license is granted; and we cannot, without exercising legislative power, say that the same amount should be paid for the selling of spirituous liquors as for the selling of spirituous, vinous, and malt liquors.

The judgment is reversed and the cause remanded to the District Court.

Reversed and remanded.

[A rehearing was granted March, 1876.]

Citation profile

How this case has been treated — in progress