
    [Philadelphia,
    December 19, 1825.]
    BIDDLE against The COMMONWEALTH.
    IN ERROR.
    The acts of assembly imposing a duty on the retailers of foreign merchandize are not repugnant to the constitution of the United States.
    
    The provisions in those acts requiring an oath or affirmation from the appellant that he verily believes injustice has been done him, and that his appeal was not made for tile purpose of delay, is not in violation of tile constitution of Pennsylvania.
    
    Error to the Court of Common Pleas of Philadelphia county, where judgment was rendered in favour of the commonweálth. It was an action of debt for the sum of eleven dollars brought by the commonwealth of Pennsylvania against Charles Biddle. The defendant demurred to the declaration, and the question was whether the act of assembly laying a duty on the retailers of foreign merchandize, passed the 2d of dlpr.il, 1821, (7 Slate Laws, 474, and the supplement thereto, passed the 4th of March, 1824, Pamph. Ed. 32,) were void, because contrary to the constitution of the United States, or of the state of Pennsylvania.
    
    By the first aet, every person w"hoshall deal in the selling of any goods, wares, or merchandize, wines or distilled liquors, except such as are of the growth, produce, or.manufacture of the' United States, (excepting sales made by auctioneers appointed by law, and by licensed tavern keepers,) are required to take out a license for vending such foreign merchandize or liquors, for which licenses certain duties, specified in the said act, were to be paid under the penalty of fifty dollars, to be recovered by indictment. There was an exception, also in favour of importers of goods, &c. who sold them in the original cask, case, box, or package in . which they were imported. The supplement abolished the distinction between the importer and other sellers of foreign merchandize, &c. and took away the penalty of fifty dollars, instead of which was substituted an action before an alderman or justice, for the amount of the duty payable by the license, with the addition of ten per cent, thereon; with an appeal from the judgmentof the said aider-man or justice, provided the person intending to appeal, should first declare on oath or affirmation, that he verily believed injustice had been done him, and that the said appeal was not made for the purpose of delay. In the present instance a suit was brought before an alderman, who gave judgment for the commonwealth, whereupon the. defendant appealed to the Court of Common Pleas. The defendant demurred to the declaration in the Common Pleas, and. judgment was again rendered for the commonwealth, on which judgment this writ of error was brought to this court. „
    
      Biddle and C. J. Ingersoll, for the plaintiff in error,
    contended that the acts of assembly above mentioned were unconstitutional and void:
    1st. Because they lay a duty on imports contrary to the provision of the constitution of the United States, article l, sect. 10, clause 2, which declares that, “ no state shall, without the consent of congress, lay imposts or duties on imports or exports, except what maybe absolutely necessary for executing its'inspection laws.” This is a duty on imports, in substance, call it tax, duty, impost or what you will. A tax on a thing imported, and a tax on the import of the thing, áre. the same. All things brought from abroad are dutied by the United States, and therefore no state can lay a tax on the same article im the hands of the importer. By the last act even the importer while the dutied article is in his hands, is subjected to a new duty, and where is the difference between a duty on an article imported and a duty on the import of that article? They cited Gibbons v. Ogden, 9 Wheat. 187. Hilton v. United States, 3 Dall. 175. Sturgess v. Crowninshield, 4 Wheat. 202. M'Cullough v. State of Maryland, 4 Wheat. 436. Federalist, No. 32, 34, 3 Serg. & Rawle, 179.
    2d. These acts are inconsistent with the right of congress to regulate commerce among the several states. Const. U. S. article 1, sect., 8, clause 3.' Suppose a'citizen of another state brings goods into Pennsylvania, may he not sell them without license from the state?
    3d. They interfere with and control the right of congress to raise a duty on imports: because by imposing an aditional duty on the article, they raise the price of the commodity to the consumer, and thus diminish the sum of the importations from which congress are to derive the revenue of the United States. This argument peculiarly applies to the tax on the article in the hands of the importer.
    
      4th. They are against the constitution of Pennsylvania, which enacts, article 9, sect. 6, that “ trial by jury shall be as heretofore.” The law impairs the trial by jury. It is unjust to deprive a man of trial by jury unless he will first swear to his innocence.
    
      Pettit, contra,
    after observing, that the declaration to which the defendant had demurred, charged him as a seller by retail, considered, 1. Whether the acts, so far as they impose a duty on retailers generally, were against the constitution of the United States, or of Pennsylvania. — 2. Whether they were against either of them, so far as respected wholesale dealers.
    1. The principle adopted in the Supreme Court of the United States is, that a grant of certain powers to congress, does not per se exclude the states from the same power, unless it be in its nature exclusive. Story, J. 5 Wheat. 48. The-power of,congress to levy taxes does not exclu.de the states, and they might have taxed imports, unless expressly excepted. Marshall, C. J. 9 Wheat. 201. The states have power to tax every thing but imports oí exports. Fed. No. 32. It is not pretended, that this is a tax directly on imports. I3ut, it is said to operate’indireetly on ihem. If every duty which remotely affects imported articles, is a lax on imports, then taxes on sales by auction are so. So are tavern licenses, pedlar’s licenses, and a tax on carriages. The states, however, have power to regulate their- own internal concerns. Marshall, C. J. 9 Wheat. 203. This tax falls on the consumer. Such taxes were in use when the constitution of the United States was framed; and congress has distinguished between a duty on imports, and a tax on retailers. Act of Congress-of the 5th of June, 1794. 2d of August,1813. In M'Cullough v. Maryland, the point which was considered as decisive was, that the tax laid by the state of Maryland, on the Branch Bank of the United States, was an injurious interference with the Bank of the United States established by congress.
    As to the regulation of commerce; which, by the constitution belongs to congress, this law does not touch it; it is part of the taxing power. Duties on imports are a branch of the taxing power, and the states would have power to impose these duties, were it not for the express prohibition in the constitution of the United States. 9 Wheat. 201.- The intérnal commerce of a state cannot be called commerce among the states. Such w'as Chief Justice Marshall’s opinion, in Gibbons v. Ogden.
    
    As to the state constitution,- this is not a criminal prosecution, but an action of debt. This court has decided such a láw to be valid, where an appeal is given to the party, on his entering security. Emerick v. Harris, 1 Binn. 16.
    2. As to the case of original importers, licenses are not required to be taken out by any but retailers, .The declaration here charged the defendant as a retailer.
   The opinion of the court was delivered by -

Tirghman, C. J.

This is an action of debt, for the sum of eleven dollars, brought by the commonwealth of Pennsylvania, against Charles Biddle. The defendant demurred to the declaration, and and the question is, whether the act of assembly, laying .a duty on the retailers of foreign merchandize, passed the 2d of dlpril, 1821, (7 State Laws, 474, and the supplement thereto, passed the 4th of March, 1824, pampb. ed. 32,) are void, because contrary to the constitution of the United States, or of the. state of Pennsylvania. By the first act, every person who shall deal in the selling of any goods, wares, or merchandizes, wines, or distilled liquors, except such as are of the growth, produce, or manufacture, of the United States, (excepting sales made by auctioneers, appointed by law, and by licensed tavern-keepers,) are required to take out a license, for vending such foreign merchandize, or liquors, for which licenses certain duties, spesified in the said act, were to be paid, under the penalty of fifty dollars, to be recovered by indictment. There was an exception, also, in favour of importers of goods, &c. who sold them in the'original cask, case, box, of package, in which they were imported. The supplement abolished the distinction between the importer, and other sellers of foreign merchandize, &c. and took away the indictment for the penalty of fifty dollars, instead of which was substituted an action before an alderman, or justice, for the amount of the duty payable for the license, with the addition of tender cent, thereon; with an appeal from the judgment of the said alderman or justice, provided the person intending to appeal, should first declare, on his oath or affirmation, that he verily believed injustice had been done him, and that the said appeal was not made for the purpose of delay. In the present instance, a suit was brought before an alderman, who gave judgment for the commonwealth, whereupon the defendant appealed to the Court of Common Pleas. The defendant demurred to the declaration in the Common Pleas, and judgment was again rendered for the commonwealth, on which. Judgment a writ of error was brought to this court. It has been contended, that these acts of assembly violated the constitution of the United States, in three respects, — 1. In laying “a duty on imports.” 2. In being inconsistent with the right of congress to regulate commerce among the several states. 3. In interfering with the right of congress, to raise a revenue from duties on imports.

1. By the constitution of th^United States, art. 1, sect. 10. No. 2, u no state shall, without the consent of congress, lay any imposts, or duties, on imports or exports, except what may .be absolutely necessary for executing its inspection laws,” &c. But how the duty in question can be a duty, or impost, on importsr I confess I cannot discover. A duty on imports, is a duty laid upon goods at the time of their being imported, or brought info the United States. But these acts of assembly lay no. duty on- any articles of foreign merchandize, either at the time of their importation, or any other time. A tax is laid on the vendor of such merchandize, not in proportion to the quantity sold, but for the privilege of selling, whether he sell much or little. It is a tax on the occupation or business of selling foreign merchandize. The principal revenue of the United States being derived from imposts, or duties, on imports of foreign merchandize, the constitution has vested the power of laying such duties exclusively in congress; and, to prevent all doubt, the several states are expressly prohibited from the right of imposing them. Had it not been for such prohibition, the states would have retained the right of laying these duties, because it would not have been inconsistent with the power granted to congress. The right of laying excises is given to congress, but the states possess the same power, because they had it originally, and are not prohibited from exercising it by the constitution. But the prohibition must not be carried beyond the plain meaning of the words. It is necessary that the states should have a revenue of their own. All objects, therefore, within their boundaries, are subject to their taxation, unless plainly exempted by the constitution. All trades, and occupations, by which men acquire a livelihood, are objects of taxation. And no two things are more distinct, than a duty on the business of a merchant, who sells foreign merchandize, after it is imported, and a duty on the particular articles which he sells, laid on them at the time of their importation. There can be no doubt, therefore, that the duty in question is in perfect accordance with the constitution of the United States.

2. But, it is alleged to be inconsistent with the rights of congress, £< to regulate commerce among the several states.” I can perceive nothing in this duty, which, so far as concerns this action, can be said in any manner to relate to commerce between the several states. The defendant is resident in this state, nor does it appear that he deals in goods brought from any other states. It is unnecessáry to consider whether qpngress, by virtue of their power to regulate commerce, might authorize citizens of one state to travel through another, and sell their goods without license, because they have never legislated on that subject. ' It cannot be said, therefore, that Pennsylvania has invaded, or interfered with any right of congress. In many of the states, travelling pedlars are required to take out a license. It is so in this state, nor has the validity of the law been questioned in any court of justice. It will be time enough to debate that question, when the duty laid by the state shall come in conflict with an act of congress.

3. The third point made by the counsel for . the defendant is, that this duty interferes with the right of congress, to raise a revenue from duties on imports. But the process by which this argument is supported, is too refined, and too circuitous. Congress, in the first place, lays duties on merchandize imported, without check or control. The revenue arises from these duties. ■ How, then, is the revenue in the right of congress diminished, by a duty laid by the state on the vendor of the imported goods? I think it was made out as follows: — The vendor adds the cost of the license to the price of the goods, which must be paid by the consumer. The increase of price produces a decrease of consumption, in consequence of which,' future imports will be lessened, and thus the revenue diminished. By the same reasoning, the state may be argued out of all right of taxation, because the power of congress to lay taxes is general; and on whatever object the state lays a tax, it may be said to interfere with the right of congress. For instance, congress once laid a tax on carriages, and Pennsylvania did the same. And no doubt many people who would have been able and willing to pay one of the taxes, laid down their carriages, rather than be burthened with both; and thus the revenue of the United States was diminished. Nevertheless, no lawyer ever questioned the legality of the state tax. It was good, because not forbidden by the constitution of the United States. Where the act of a state militates with any power which has been lawfully exercised by congress, there is strong force in the argument, that the constitution has been violated. Such, for example, would be a state law tending immediately to destroy a bank chartered by congress. But an incidental injury, arising from a state law chartering one or more banks of its own, in consequence of which, the profits of the bank ef the United States would be lessened, would be no breach of the constitution, because each government acted within its own jurisdiction. And just so it was in the case under consideration.— Congress laid an impost on the merchandize at the time of importation, and the state of Pennsylvania forbad the sale of it by any person within her territory, without a license, on which she laid a duty. Each power confined itself to its proper orbit, and the act of each was lawful.

4, But, it is said, that the constitution of the stale was infringed, by impairing the trial by jury. The action was brought before a magistrate, who decided without a Jury. But then, the defendant had the right of appeal to the Court of Common Pleas, where he might have a trial by jury. The constitution, therefore, was not broken, as was decided in the case of Emerick v. Harris, Binn. 416. There is no weight in the objection, that the appeal is clogged with the condition of the appellant’s making oath, “that he verily believed injustice had been done him, and that the appeal was not made for the purpose of delay.” This is no more than a wholesome regulation. The object of courts is, to administer justice; and no man has a right to complain, because he is refused an appeal intended for the purpose of delay, or in a case in which he does not think that he has suffered injustice. It might as well be said, that the trial by jury was attacked by a law which should forbid a defendant to put in a dilatory plea, or to plead non esi factum, in an action of debt on a bond, without swearing that he believed the matter of the plea to be true. Laws such as these promote justice, and leave the substance of the trial by jury unimpaired, and that is all which is required by these expressions in the constitution, that “ trial by jury shall be as heretofore.” On the whole, then, I am of opinion, that the acts of assembly did not violate the constitution either of the state, or of the United States; and, therefore, the judgment should be affirmed.

Judgihent affirmed.  