
    No. 1278.
    State of Louisiana v. S. H. Kennedy & Co.
    The power of Congress to regulate commerce with foreign nations, and tlie States of the Union is complete in itself, and has no limitations, other than are presented by the Constitution.
    Under the 2d clause of the 10th section of the 1st Artiole of the Federal Constitution, the States are without power to impose any duty or tax upon any property imported into their territorial limits, while the imported artioles remain the property of the person sending them there for Sale, or while it remains in its original form or packages.
    The State of Louisiana cannot tax property broughthere from other States of the Union, for sale or reshipment, until it has been mixed with and forms a part of the common mass of the property of the State.
    An agent or commission merchant domiciliated in this State, receiving property on consignment from' another State for sale on commission, cannot he taxed on the amount of the gross sales made of the goods in their original form, or packages, where he aocounts to the owner (a nonresident) for the prioe obtained, less his commissions for making the sale.
    A EPEAL from ike Sixth District Court of New Orleans, Buplaniier, J.
    
      Andrew S. Herron, Attorney-General, for the State.
    
      Campbell, Spofford & Campbell, and C. Boselius, for defendants and appellees.
    
      Brief of A. S. Herron, Attorney- General, for the Stale.
    
    * ' * The State seeks to recover from defendants the sum of one-quarter of one per cent. on.the amount of their gross sales and receipts, as commission merchants and vendors of produce, between the first of July, 1865,-and first of January, 1866. The State also claims twenty per cent, on the amount of their - tax, as a penalty for their failure to pay said tax according to law.
    The third section of the act of 4th of April, 1865, p.. 150, provides: “There shall be assessed and collected the sum of one-quarter of one per cent, on the annual gross sales or receipts of each and every person pursuing any trade, profession or occupation, whose annual receipts exceed the sum .of two thousand dollars.”
    “ All persons pursuing any trade, profession or occupation within the limits of the city of New Orleans, shall render to the auditor of public accounts, at his office in New Orleans, within ten days after the passage of this act, a statement, under oath, of all gross sales effected by them or receipts from the 1st day of July to the 31st day of December, 1865, and shall pay into the State treasury the amount of said tax at the time of rendering such statement. It shall be the duty hereafter of'each and eyery person liable for this tax to render a like statement, and make-'set* •tlement within the first ten days of every quarter; and any person failing ■■to comply with the provisions of this act shall be liable to a penalty of twenty per cent, upon the amount of tax due, to be collected in the same manner as other taxes. ” Act of 1866, p. 46.
    The joint resolution approved March 10th, 1866, Acts 1866, p. 138, extends the time of payment provided for in the above act until the 15th of March, 1866.
    Under the legislation above referred to, the defendants are liable for the tax and damages claimed from them, unless it appear that the act imposing the tax is in violation of the’Constitution of the United States or of the Constitution of this State. The defendants contend it-is violative of both.
    It is urged that the act in question is in conflict with: 1st. The second clause of the tenth section of the first Article of the Constitution of the United States, which provides “ that no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the treasury of the United States.”
    2d. Also, with the third clause of the eighth section of the first Article, which empowers Congress “ to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”
    ■ Does the prohibition, contained in the second clause of the tenth section, first Article, include articles and merchandize brought into one State from another State, or does the word “imports” mean articles, etc., brought into the United States from abroad, from foreign countries?
    ■ It is submitted that this prohibition refers exclusively to “imports” from foreign countries. Such, it is thought, is the universal acceptation of the term, as well as the interpretation placed upon it by the highest authority.
    In the License cases, 5 Howard 594, Mr. Justice McLean says: “And it is supposed that the declaration ‘ that no State, without the consent of Congress, shall lay aDy impost or duties on imports or exports,’except what may be absolutely necessary for executing its inspection laws, refers to foreign commerce. ”
    Again, he says: “ The word import, in a commercial sense, means the goods or other articles brought into this country from abroad—from another country. In this sense, an importer is a person engaged in foreign commerce, and it appears that in the acts of Congress which regulate foreign commerce, he is spoken of in that light.”
    Mr. Justice Catron, in the same case, says: “Had the gin imported been an ‘ import ’ from a foreign country, then the license law prohibiting its sale by the importer would be void.” 5 How. p. 601.
    Mr. Justice Daniel, same case, p. 614-, says: “Imports, in a political or fiscal, as well as in common practical acceptation, are, properly, commodities brought in from abroad, which either have not reached their perfect investiture or their alternate destination as property within the jurisdiction of the State, or which still are subject to the power of the government for a fulfillment of the conditions upon which they have been admitted to entrance, ” etc.
    
      It is evident, from a careful examination of the case of Andrew Pierce el al v. The Stale of New Hampshire, one of the “License cases” above quoted from, that the Court must have adopted the interpretation here contended for, as the majority of the Court recognize the correctness of the decision in Brown v. Maryland, 12 Wheaton 419; that a State was without Constitutional power to require a license from an importer before ho was permitted to sell in the original package; and the facts in Pierce v. New Hampshire are, that Pierce brought from the State of Massachusetts, into the State of New Hampshire, a barrel of gin, and sold it in the cask in which it was brought, without the license required by the law of New Hampshire, certainly affording, in every respect, a parallel case with that of Brown v. Maryland, if the word “imports,” in the clause of the Constitution, means “articles,” etc., brought from one State into another, as well as those brought into the country from abroad. And yet the Court sustain the law of New Hampshire, requiring the license.
    Mr. Justice McLean, in the same case, 5 Howard, p. 594, says: “In Brown v. The Stale of Maryland, 12 Wheaton 443, the Court say: “The act of .Maryland denies to the importer the right of using the privilege which he has purchased from the United States until he has purchased it from the State.” And it was upon the ground that the tax was an additional charge or impost upon the thing imported which a State could not iinx>ose, that the above act was held to be unconstitutional.
    But neither the facts nor the reasons of that case apply to a person who transports an article from one State to another. In some cases the transportation is only made a few feet or rods, and generally it is attended with little risk, and no duty is paid to the State or Federal Government. And why should property, when conveyed over a State line, be exempt from taxation which is common to all other property of the State?,
    If the foregoing opinions be considered correct, the prohibition .under discussion does not refer to goods and articles brought into one State from another.
    McCulloch’s Commercial Dictionary, verbis, importation and exportation: “ The bringing of commodities from and sending them to other countries. ”
    In support of the proposition above, as well as the basis of argument on other points in the case, the following fundamental authorities (which of course will only be controverted as to their proper application) are submitted:
    Art. 10.'Amendments to the Constitution. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. ” A cardinal principle now invoked as a good starting point in the investigation of all questions of conflict between the action of States and the Federal Constitution, and to the same purport is the interpretation found in the 32d number of the Federalist.
    “An active consolidation of the States into one complete national sovereignty, would imply an entire subordination of the parts, and whatever powers might remain in them would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not by that ' act exclusively delegated to the United States. This exclusive delegation, or rather this alienation of State sovereighty, would only exist in three cases: where the Constitution in express terms granted an exclusive • authority to the Union; where it granted in one instance an authority to the Union; and, in another, prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant. I use these terms to distinguish this last case from another which -might appear to resemble it, but which would in fact bp essentially different. I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply aDy direct contradiction or repugnancy.in point of constitutional ^authority. ” * *
    . “ A case which may, perhaps, be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. I mean the power of imposing taxes on all articles other than exports and imports. This, I contend, is manifestly a concurrent and co-equal authority in the United States, and in the individual States. There is plainly no expression in the granting clause which makes that power exclusive in the Union. There is no independent clause or sentence which prohibits the States from exercising it; so far is this from being the case, that -a plain and conclusive argument to the contrary is deducible from the restraint laid upon the States in relation to duties on imports and exports. This restriction implies an admission, that if it were not inserted the States would possess the power it excludes; and it implies a further admission that as to all other taxes, the authority of the States remains undiminished,” etc,
    If goods sold by defendants are not’ “imports” from abroad—from another country—they are liable to taxation by the State, unless that taxation is in conflict with the clause of the Constitution, empowering Congress “ to regulate commerce with foreign States, and among the several States,” etc. _
    Is the tax,.under the Act of 1865, a regulation of commerce among the States, or between this State and another, or other States? In what respect is it so? The act appears to be simply and purely a tax on the gross sales or receipts made by persons in the State, without discrimination or distinction as to what they sell or where the goods are brought from, whether they were manufactured or produced in Louisiana, or elsewhere. No discrimination is made against goods or articles from other States; none in favor of State productions; no impost or other duties are charged on goods from other States before they are allowed to come into the State, or before they can be sold; no license isexacted from the seller (by the act in question) before he is allowed to sell; he is not compelled to sell; his goods are not taxed while in his hands, and before sale. In every respect, goods and articles brought into the State from another State, and sold here, are treated exactly as goods or articles raised or manufactured in the State are. There is no attempt in the act to regulate commerce, directly or indirectly. It is simply a legitimate exerc'isé of the taxing power.
    
      How is this power restricted, in the States by the Constitution oí the United States. It is limited by the clause we have hereinbefore considered, prohibiting the States from laying duties on imports or exports, and as to tonnage.
    A State is also prohibited from taxing the means or instruments which are employed by Congress to carry into execution powers conferred on that body by the'Constitution. Beyond this it is thought, under a proper construction, according to the fundamental authorities above quoted, there is no constitutional restriction upon the sovereign powers of the State.to tax everything which exists by its own authority, or is introduced by its permission.
    In support of the foregoing proposition, the following authorities are' ■quoted:
    “It may be objected" to this definition, that the power of taxation is not confined to the people and property of a State. It may be exercised on.every object brought within its jurisdiction. This is true. But to what source do we trace the right ? It is obvious that it is an incident of Sovereignty, and is co-extensive with that to which it is an incident. All subjects over which the sovereign power of a State extends, are objects of taxation; but those over which it does not extend are, upon the soundest principles, exempt from taxation. This proposition may be almost pronounced self-evident.”
    “The sovereignty of a State extends to'everything which exists by its own authority, or is introduced by its permission; but does it extend'to' those means which are employed by Congress to carry into execution powers, conferred on that body by the people of the United States? We think it. demonstrable that it does not,” etc.
    Chief Justice Marshall’s opinion of the Court in McCullough v. Slate of Maryland, 4 N. 429.
    In this case it is decided that a State tax on the operations of the Bank' oí the United States, is unconstitutional. One of the restrictions upon the power of the States is shown in the decision, but the reasoning of the Chief Justice demonstrates the correctness of the position, that the power is plenary and general, and that the restrictions are exceptional, and of course must clearly appear to be recognized.
    “ The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic.
    “ This is an original principle which has its foundation in society itself. It is granted by all for the benefit of all. It resides in government as a part of itself, and need not be reserved when property of any description, .or the right to use it in any manner, is granted to individuals or corporate tbodies.' However absolute the right of an individual may be, it is still in ■the nature of that right that it must bear a portion of the public burdens, and that portion must be determined by the Legislature. This vital power may be abused, but the Constitution of the United States was not intended to furnish \the corrective for every abuse of power which may be committed by the'State governments. The interest, wisdom and justice of the representative body, and its relations with its constituents, furnish the only security, where there is no express contract against unjust and excessive taxation, as well as against unwise legislation generally.” Chief Justice Marshall’s opinion of the Court in Providence Bank v. Billings, 4 Peters, p. 563.
    Again, in the same case, the Chief Justice says:
    “That the taxing power is of vital importance; that it is essential to the existence of government, are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be assumed.” * *
    “ But as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the State to abandon it does not appear.”
    The License cases, 5 Howard, p. 573, already quoted from, are again referred to, and an extract from the.opinion of McLean, J. subjoined:
    “The owner of the property who purchased it in Massachusetts, and , transported it to New1 Hampshire, is not an importer in the sense in which that term is used in Brown v. Maryland. And there is nothing in the general reasoning of that case, or in the facts, which can bring into doubt the constitutionality of the New Hampshire law.”
    . “If the mere conveyance of property from one State to another shall exempt it from taxation, and from general State regulation, it will not be difficult to avoid the police laws of any State, especially by those who live at or near the boundary. If this tax had been laid on the property as an import into the State, the law would have been repugnant to the Constitution. It would have been a regulation of commerce among the States, which has been exclusively given to Congress. One of the objects in adopting the Constitution was to regulate this commerce, and to préyent the States from imposing a tax on the commerce of each other. If this power has not been delegated to Congress, it is still retained by the States, and may be exercised at .their discretion, as before the adoption of the Constitution. Eor, if it be a reserved power, Congress can neither abridge nor abolish it. But this barrel of gin, like all other property within the State of New Hampshire, was liable to taxation by the State. It comes under the general regulation, and cannot be sold without a license. The right of an importer of foreigh spirits to sell in the cask, without a license, does not attach to the plaintiffs in error on account of their having transported this property from Massachusetts to New Hampshire. ”
    This is the opinion of one of the Judges, believing, as defendant’s counsel in this case do, that the power to regulate commerce among the States has been exclusively given to Congress. His opinion is clear, that the levying a tax on articles sold in the original package by the person bringing them into one State from another, is not a regulation of commerce among the States, and this, too, where the tax is by way of license before sale, a stronger case than the one before you, where the tax is only levied after sale.
    In Gibbons v. Ogden, 9 Wheaton, p. 201, Marshall, C. J. in delivering the opinion of the Court, says:
    “We must first determine whether the act of laying duties or imposts on imports or. exports is considered in the Constitution as a branch of the taxing power, or of the power to regulate commerce. We think it very clear that it is considered as a branch of the taxing power. It is so treated in the first clause of the 8th section, ‘ Congress shall have power to lay and collect taxes, duties, imposts and excises’, and, before commerce is mentioned, the rule by which the exercise of this power must be governed is declared. It is that all duties, imposts and excises shall be uniform. In a separate clause of the enumeration the power to regulate commerce is given, as being entirely distinct from the right to levy taxes and imposts, and as being a new power not before conferred. The Constitution then considers these powers as substantive, and distinct from each other; and so places them in the enumeration it contains. The power of imposing duties on imports, is classed with the power to levy taxes, and that seems to be its natural place. But the power to levy taxes could never be considered as abridging the right of the State on that subject; and they might, consequently, have exercised it by levying duties on imports or exports, had the Constitution contained no prohibition on this subject. The prohibition, then, is an exception from the acknowledged power of the States to levy taxes, not from the questionable power to regulate commerce.”
    If this able commentary be correct, the deduction irresistibly drawn from it is, even if the power in Congress to regulate commerce is exclusive, that the only restriction upon the taxing power of the State is found in the prohibition contained in the clause relative to “imports and exports;” they being, as contended above, articles brought in from foreign countries, the power to regulate commerce embracing no prohibition, consequently there is no prohibition against taxing articles brought into one State from another.
    Mr. Justice Taney, in the Passenger cases, 7 Howard, 480, after endorsing and affirming the above doctrine very fully, says:
    • ‘ I may, therefore, safely assume that according to the true construction of the Constitution, the power granted to Congress to regulate commerce did not, in any degree, abridge the power of taxation in the States; and that they would at this day have the right to tax the merchandise brought into their ports and harbors by the authority, and under the regulations of Congress, had they not been expressly prohibited.
    “They are expressly prohibited from laying any duty on imports or exports, except what may be absolutely necessary for executing their inspection laws, and also from laying 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.”
    Justice Woodbury, in Passenger cases, 7 H. 531: “ 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 otherwise, to restrict themselves. Such a power, likewise, is one of the most indispensable to their welfare, and even their existence. * * * But in all.cases of doubt, the leaning may well be towards the States, as the General Government has ample means, ordinarily, by taxing imports, and the States limited means, after parting with that great and vastly increased source of revenue connected with imports. The States may, therefore, and do frequently tax everything but - exports, imports and ■tonnage as such. They daily tax things connected with foreign commerce -as well'as domestic trade. They can tax the timber, cordage and iron, of which the vessels for foreign trade are made; tax their cargoes to their ■owners as stock in trade; tax the vessels as property, and tax the owners and crew per head for their polls. Their power, in this respect, travels over water as well as land, if only within their territorial limits.”
    Mr. Justice McLean, rendering the opinion of the Court, in Nathan v. Louisiana, 8 H, 82, 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 State, 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 States. The only restraint is found in the responsibility of the members of the Legislature to their constituents. If this j>ower of taxation by a State, within its jurisdiction, may be restricted beyond the limitation 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 laws, 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. ”
    • The extract below, from a decision of our own Supreme Court, is also in point:
    “ We cannot conceive that a question can arise (in the case before the Court) under the Article of the Constitution quoted. All taxation upon property within one State may remotely affect commerce with a sister State. Thus, a tax upon stores may increase the price of merchandise brought here by merchants from abroad; a tax upon warehouses, the price of the storage from the Western States, and a tax upon our markets may enhance the price, or perhaps curtail the quantity of supplies brought to them. Yet these taxes have never been questioned. It is only when a regulation of commerce by a State directly affects commerce with a sister State, that a question can arise whether the grant to Congress to regulate commerce between the States is exclusive.” Preston, J., opinion of the Court in Union Towboat Company v. Bordelon.
    
    It is thought the foregoing authorities establish clearly that the tax on gross sales or receipts is simply a legitimate exercise of the taxing power, and in no manner a regulation of commerce; nor is it even an indirect interference with the regulation of commerce.
    However, even if the tax in question should be considered a regulation of commerce between the States, it is contended it would not thereby be repugnant to the Federal Constitution.
    It is thought that, although the doctrine that the “ power to regulate commerce,” etc., is an exclusive one in Congress, lias occasionally found earnest and able advocates, tlie great weight of authority is arrayed against any such construction.
    It will be found, it is thought, that many of the opinions relied on by counsel, in support of the proposition, when closely examined, are far from sustaining it.
    First. The case of Brown v. State of Maryland, from which counsel quote very fully, and of which they say: “The extracts we have made from the opinion of the Supreme Court, in the important and leading case of Brown v. Maryland, and the fullness of the opinion itself, would seem to render it a work of supererogation to add more,” will be found not to decide the question now before this Court.
    Extracts are subjoined, showing the opinions of Justices of the Supreme Court, as to what was decided by the Court in the above case:
    Chief Justice Taney, after a very full and cordial endorsement and approval of the doctrine sanctioned by the Court, in Brown v. Maryland, says, in the License cases, 5 Howard, p. 578: “The present case, however, differs from Browns. The Stale of Maryland, in this—that the former was one arising out of commerce with foreign nations which Congress had regulated by law—whereas the present is a case of commerce between two States, in -which Congress has not exercised its power. ”
    Mr. Justice McLean, same case, p. 594, after quoting from Brown v. Maryland, the words: “It may be proper to add that we suppose the principles laid down in this case to apply equally to importations from a sister State.” “ This remark of the Court was incidental to the question before it, and the point was not necessarily involved in the decision. Whilst the remark cannot fail to be considered with the greatest respect, coming, as it did, from a most learned and eminent Chief Justice, yet it cannot be received as authority. It must have been made with less consideration than the other points ruled in that important case.”
    In another place, same decision, he says, speaking of Broum v. Maryland: “But neither the facts nor the reasons of that ease apply to a person who transports an article from one State to another.”
    Mr. Justice Catron, after stating his opinion as to what was decided in Brown v. Maryland, says: “ Neither of these cases touch the question of exclusive power, nor do I suppose it was intended by the writer of the opinion to approach that question, as he studiously guarded the opinion in the. leading case of Gibbons v. Ogden, against such an inference, and professedly, followed the doctrines there laid down in Brown v. The State of Maryland. ” License cases, 5 Howard, p. C04.
    In the same case, p. 618, Mr. Justice Nelson concurred in the foregoing opinions of the Chief Justice, and Mr. Justice Catron, Mr. Justice Daniel in the same case concurs, but goes further than the other Judges, not even recognizing the correctness of the decision in Brown v. Maryland, on the points therein decided as to foreign imports, and as to the regulation of foreign commerce. 5 Howard, p. 612.
    These opinions, it is submitted, show:
    1st. That the question as to the exclusiveness of the power in Congress to regulate commerce is not affirmed in Brown v. Maryland, and
    2d. In the License cases themselves, it is decided that such power is not exclusive, and that too, on a state of facts very similar to those of the case before you. The only difference being in favor of the present case, where no tax is levied until after actual sale, while in the other, the tax or license was required to be paid before sale.
    2. The case of Gibbons v. Ogden, 9 W. 200, one relied on by the advocates of the exclusive-power doctrine, as sustaining their views, still less, if possible, than Brown v. Maryland, affirms that doctrine.
    I quote from the opinion of the Court, in the above case: “ In discussing the question, whether this power is still in the States, in the case under consideration, we may dismiss from it the inquiry, whether it is surrendered by the mere grant to Congress, or is retained until Congress shall exercise the power. We may dismiss that inquiry, because it has been exercised, and the regulations which Congress deemed it proper to make are now in full operation. The sole question is, can a State regulate commerce with foreign nations, and among the States, while Congress is regulating it.” Instead of this case deciding the power in Congress to regulate commerce to be exclusive, the opinion, in very positive terms, asserts that it dismisses from the case the inquiry into that question.
    In speaking of Gibbons v. Ogden, after quoting from the case of Wilson et al v. Blackbird Creek Marsh Co., Mr. Justice Catron says: “In the case of New York v. Miln, Mr. Justice Thompson and Mr. Justice Story differed entirely as to what the language employed in the opinion in Gibbons v. Ogden meant, in regard to the true exposition of the Constitution; one contending that the language used had reference to the power of Congress, and to a case where it had been fully exercised; the other, insisting that the opinion maintained the exclusive power in Congress to regulate commerce, and that the States had no authority to legislate, but were altogether excluded from interfering. This was Mr. Justice Story’s opinion. I think it must be admitted that Chief Justice Marshall understood himself as Mr. Justice Thompson understood him, otherwise he could not have held as he did in the last case, in 1829, of Wilson v. The Blackbird Creek Marsh Go. And as this case was an adjudication on the precise question, whether the Constitution of the United States, in itself, extinguished the powers of the States to interfere with navigation on tide-water, and as it was adjudged in the case of Gibbons v. Ogden, that the powers to regulate commerce included navigation as fully as if the clause expressed it in terms, it is difficult to say that this case does not settle the question favorably to the exercise of jurisdiction on the part of the States, until Congress shall act on the same subject, and suspend the State law in its operation. License cases, 5 Howard, p. 605.
    Mr. Justice Daniel, in Passenger cases, 7 Howard, p. 500, says: “As the case of Gibbons v. Ogden has been much relied on in the argument of these cases, and is constantly appealed to as the authoritative assertion of the principle of exclusiveness in the power of Congress to regulate commerce, it is proper here to inquire how far the decision of Gibbons v; Ogden affirms this principle so often and so confidently ascribed to it; and after all that has been said on this subject, it may be matter of surprise to learn that the Court, in the decision above mentioned, so far from affirming that principle, emphatically disclaims all intention to £>ass upon it,” and much more to the same effect.
    
      
      Gibbons v. Ogclen, I submit, does not sustain the exclusiveness in Congress of the power to regulate commerce.
    3. The Passenger cases, 7 Howard, 393, are also relied on as sustaining the views of defendants on the constitutional questions under discussion. An examination of the opinions of the Justices will, I think, show the very reverse.
    Mr. Justice Wayne, whose individual opinion is clearly that the power to regulate commerce is exclusively vested in Congress, says: “Before stating, however, what they are, it will be well for me to say that the four Judges and myself, who concur in giving' the judgment in these cases, do not differ in the grounds upon which our judgment has been formed, except in one particular, in no way at variance with our united conclusion; and that is, that a majority of us do not think it necessary in these cases to reaffirm, with our brother McLean, what this Court has long since decided, that the constitutional power to regulate commerce with foreign nations, and among the several States, is exclusively vested in Congress, and that no part of it can be exercised by a State.”
    It is evident that the question was not decided by the majority of the Court, as they agreed positively not to decide it.
    Another fact is also certain and patent, that a majority of the Court at the time the decision in the above case was rendered, were of opinion that the power to regulate commerce is not exclusively conferred upon Congress.'
    I. Mr. Justice Catron, in the License cases, decided only two years before the Passenger cases, rendered a full, elaborate and able opinión on this subject of exclusiveness, in which he holds the opinion that the power is not exclusive. In the Passenger cases he expresses no opinion .in conflict with the previous opinion. He was one of the majority concurring in the opinion of the majority, and withholding in the casé any expression of opinion on the subject of the exclusiveness of the power. Hence, it is concluded that his opinion was still against the exclusive power. 2. C. J. Taney. 3. Mr. Justice Daniel. 4. Mr. Justice 'Wood-bury. Each delivered full and able opinions against the doctrine of exclusiveness of power in Congress. 5. Mr. Justice Nelson fully concurs with the Chief Justice’s opinion, “ not only in its conclusions, but in the grounds and principles upon which it is arrived at.”
    Justices McLean and Wayne alone express opinions in favor of the doctrine of exclusive power in Congress, and of these Justice McLean, in the License cases, did not consider an article brought from one State into another an import. Nor did he consider there was any violation of the Constitution in its taxation; such taxation, in his opinion, not being a regulation of commerce. I think, then, that the Passenger cases cannot be quoted as sustaining the exclusive power in Congress to “regulate commerce with foreign nations and among the States.”
    4. The case of Hays v. The Pacific Mail Company, is no authority in this case; the facts, as shown, were that the vessels taxed were in California, were they were taxed, “but temporarily engaged in lawful commerce with their situs at the home port; as said by Campbell, J., “the material fact is that the vessels were in transitu, having no situs in California, nor permanent connections with its internal commerce.”
    
      It may very well be, that the goods in transitu through a State, and there temporarily, could not be taxed, and yet the power to tax remain unimpaired where goods are brought into one State from another, and 'are brought into competition with the goods of the State and sold, thus forming'" a permanent connection with its internal commerce.”
    5. The case of Almyv. California, 24 How. 169, it is contended, “is important to show that the Court regard the inter-State commerce as standing upon the same ground, as to constitutional protection, as foreign ; •commerce, and that the closing paragraph cited from the opinion in the cáse of Brown v. Maryland has been judicially adopted, in a case arising in the 'commerce between two States of the Union. ”
    At first blush the position appears a strong one, but it is thought a a careful investigation will show its strength to be merely in appearance and not in reality. It is true that the case of Almy v. California, was one in which the shipment of gold was made from California to New Yorkj and in that case the law of California imposing a stamp duty or tax upon bills of lading for gold, gold dust, etc., was decided to be repugnant to the Article in the Federal Constitution, prohibiting the laying of duties 'on exports. But it is also the fact that the act of California in question was . applicable to the exportation proper of gold, etc., to foreign countries, and for that reason, and to that extent it certainly was beyond all question unconstitutional. It is also true that the point in controversy in • this suit, as to whether commodities brought from one State of the Union into another constitute “imports and exports,” under the meaning of the Article of the Federal Constitution, was not directly raised or argued by counsel, or even alluded to in the reasoning of the Court in its decision. It is submitted that the weight of this authority cannot be deemed equal to "that of the -License cases, where the point in question is directly made and fully discussed, and the opinion of the majority of the Court, including Chief Justice Taney, who rendered the decision in Almy v. California, clearly at variance with this pretended authority. Now, if the interpretation placed upon this decision be correct, how can we reconcile the apparent contradictory positions of the Chief Justice in the two cases ? For there is clearly antagonism between the two. Not only is Ihe opinion attributed to him in Almy v. California, inconsistent with his opinion and that of the majority of the Court in the License cases, but it is irreconcilable with his opinion in the Passenger cases quoted above. It is not absolutely impossible that he should have intended not only to change his own twice matured and deliberately expressed opinion, but should also deliberately overturn the well-advised decision of the Court itself, upon a vastly important constitutional question, without even alluding to these previously expressed opinions and decisions ?
    The Court will perceive, in the opinion in Almy v. California, that all of the illustrations in argument refer to “foreign countries,” “other countries,” etc., and not one word is said upon the point in controversy, in this case, as to the distinction and difference between articles brought from one State of the Union into another, and articles brought from a foreign country into the Union. Whatever else it was intended to decide, I think we may surely conclude it did not contemplate the decision of the point at issue in this ease.
    
      6. The New York case, quoted by defendant’s counsel, appears to be merely a decision under the law of New York, and does not appear to undertake the solution of the constitutional questions submitted to this Court for its decision.
    7. The opinions of Mr. Madison, from debates on Federal Constitution, I think, on close examination, will not be found antagonistic to the decisions of the Supreme Court relied upon by’the State, and so oopiously quoted from above.
    It is submitted that the following authorities are conclusive upon the subject of the exclusive “power of Congress to regulate commerce,” etc:
    In Wilson v. The Blackbird Greek Marsh Go., 2 Peters 250, Chief Justice Marshall, in delivering the opinion of the Court, says: “ The counsel for plaintiff's in error insist that it comes in conflict with the power of the United States ‘ to regulate commerce with foreign nations and among the several States.’ If Congress had passed any act which bore upon the ease, any act in execution of the power to regulate commerce—the object of which was to control State Legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the Middle and Southern States—we should not feel much difficulty in saying that a State law which came in conflict with such an' act would be void. But Congress has passed no such act.' The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations,- and among the several States—-a power which has not been so exercised as to affect the question. ” ’.
    In a recent case, 3 Wallace, 732, Gilman v. Philadelphia, the Court say, speaking of the power to regulate commerce: “Until the dormant-power of the Constitution is awakened and made effective by appropriate" legislation, the reserved power of the States is plenary, and it’s exercise’ in good faith cannot be made the subject of review by this Court.”
    The dissenting opinion, by Mr. Justice Clifford, is not at variance with the above doctrine, but contends that “Congress has legislated so as to deprive the State of Pennsylvania, in the case before the Court, from doing so.” Vide opinion in full.
    The following additional cases are cited as in point on the foregoing proposition—“power of Congress to regulate,” not exclusive: No. 32, Federalist. Houston v. Moore, 5 W. 49; Sturgis v. Growninshield, 4 W. 193.
    It is submitted that even in case the Court should deem the tax imposed by the act of the Legislature of Louisiana a regulation of commerce, unless it should appear that the said regulation is in violation of some legislation of Congress, also regulating commerce, it is nevertheless not repugnant to the Constitution of the United States.
    If the State law is of even doubtful repugnancy to the Constitution, the Court will not be authorized to declare its nullity.
    “ The question whether a law be void for its repugnancy to the Constitution, is at all times a question of much delicacy, which ought' seldom, if ever, to be decided in the affirmative in a doubtful case. The Court, when impelled by duty to render suoh a judgment, would be unworthy of its station, could it be unmindful of the solemn obligation -which that station imposes. But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the Judge feels a clear and strong conviction of their incompatibility with each other.” C. J. Marshall, opinion of the Court in Fletcher v. Peck, 6 Oranch 128.
    In Brownv. Maryland, Chief Justice Marshall says, p. 437,12 W.: “It has been truly said that the presumption is in favor of every legislative act, and that the whole burden of proof lies on him who denies such constitutionality. The plaintiffs in error take the burden upon themselves,” etc.
    ■ Mr. Justice Daniel, Passenger cases, 496, 7 Howard, says: “ The question whether a law be void for its repugnancy to the Constitution, ought seldom, if ever, to be decided in the affirmative in a doubtful case. It is not on slight implication or vague conjecture that a legislature is to be pronounced to have transcended its powers, and the acts to be considered void. The opposition betw'een the Constitution and the law should be such that the Judge feels a clear and strong conviction of their incompatibility with each other;” and many others.
    Is the act of 1865 repugnant to the Constitution of the State ? Is the tax assessed uniform ? The Article 124, or the corresponding articles in previous Constitutions have, on the subject of uniformity, been fully interpreted by the Supreme Court of our own State.
    The rule proclaimed in this article is but the reiteration of a great fundamental principle, which lies at the foundation of all well organized governments, that taxation must be uniform and equal; and while we are disposed to give to it its fullest force and effect, we are unable to discover in what it is repugnant io the act of 1842 or the act of 1850. To be uniform, taxation need not be universal. Certain objects may be made its subjects, and others may be exempted from its operation; certain occupations may be taxed, and others not; so some occupations may be taxed for a greater amount, and others for a less; but as between the subjects of taxation in the same class, there must be an equality.” State of Louisiana v. The Widow and Heirs of Pogdras, 9 An. p. 165.
    “If we consider this class of exactions as falling within the purview of the first clause of Article 123, still we think it constitutional, because it operates uniformly upon all persons of the same class, to wit: all keepers of coffee-houses. The defendant is required to pay the State what other keepers of coffee-houses are required to pay, no more and no less.” Slate v. J. Rebassa, 9 A. 305.
    It is clear that this article has reserved the right of the Legislature to exempt any property it deems fit from taxation altogether. But if it tax at all, then says the Constitution, it must tax equally or in a uniform ratio, according to an assessment legally made, all property of the same description upon which a tax is levied. ” 10 An. 736, New Orleans v. Commercial Bank.
    
    “Upon the question of constitutionality, it is only necessary to repeat what was said in the case of the Slate v. Rebassa, 9 An. 305, that the license tax in question operates uniformly upon all persons of the sam class, to wit: all keepers of coffee-houses. It is, therefore, constitutional. ” Oily of New Orleans v. J. A. Slaejer, 11 An. 68.
    Wherein consists the want of uniformity in the act of 1865 ? It levies a uniform tax of one-quarter of one per cent, on all gross sales or receipts, exempting from its operation only those whose gross sales or receipts are under two thousand dollars. It is a uniform and equal tax upon all gross sales or receipts of a certain class; that is, all over two thousand dollars; those under two thousand being exempt, and forming a class not taxed. Cannot this exemption be made by the sovereign power of the State ? Conceding, however, for the argument, that such an exemption is not uniform, wherein is the want of uniformity, and consequent repugnancy to the State Constitution ? It clearly is only in that feature of the law taxing the first two thousand dollars of sales or receipts of those whose entire sales or receipts are more than two thousand. In this consists, if in anything, the only violation of the State Constitution, which can be corrected by the tax collector conforming to the Constitution, and not exacting the tax from any one on the first two thousand dollars, and in the powers of the judiciary to prohibit and prevent the enforcement of the law, so far as it is unconstitutional.
    How are the defendants, and to what extent are they affected by this unconstitutional feature, if it be unconstitutional ? Certainly only in being called on to pay the tax on the first two thousand dollars. If the Court should be of opinion that the exemption of some without the exemption of all to the same extent, is repugnant to the Constitution; it is perfectly competent for the Court to render judgment against defendants for the amouut claimed, less the tax on the first two thousand dollars of their gross sales.
    Our Courts have decided that where a portion of a law is unconstitutional, and only a portion, that the law is good and binding in all other respects, wherein it is in conformity to the Constitution. Williams v. Payson, 14 A. 7.
    It is urged that the authorities (decisions of our Supreme Court) hereinbefore cited, are inapplicable under the provisions of Article 124, Constitution of 1864, which, it is contended, are substantially different from those of Art. 123, Constitution of 1852.
    Is this so ? The first clause in both Constitutions is in the same words: “ Taxation shall be equal and uniform throughout the State.”
    The second clause in the Constitution of 1852, is: ‘ ‘ All property on which taxes may be levied in this State shall be taxed in proportion to its value, to be ascertained as directed by law, ”
    Second clause in Constitution of 1864, omit words “on which taxes may be levied in this State.”
    The third clause of Constitution of 1852, is omitted in that of 1864: “No one species of property shall be taxed higher than another species of property of equal value, on which taxes shall be levied. ”
    The concluding portions of the articles, respectively, are as follows:
    Constitution of 1852: “ The Legislature shall have power to levy an income tax, and to tax all persons pursuing any occupation, trade or profession.”
    Constitution of 1864: “The General Assembly shall levy an income tax upon all iDersons pursuing any occupation, trade or calling; and all such persons shall obtain a license, as provided by law. All tax on income shall be pro rala on the amount of income or business done.”
    The following clause in the Constitution of 1864, is not contained in the Constitution of 1852: “The General Assembly shall have power to exempt from taxation property actually used for church, school or charitable purposes.”
    Is the omission, in the second clause of the words, “ on which taxes may be levied in this State, such an alteration of the provisions of the Constitution of 1852, as to make it imperative on the Legislature to tax every species and article of property in the State, without any exception whatever; and in case of any omission or exemption, the tax imposed to be null and unconstitutional ?
    Does this omission in any way alter the effect of the article ? Is not the direction to the Legislature in fact substantially the same in both articles ? If it had been intended to give the article the meaning claimed by defendants, would it not have used direct and specific language indicating such intent,?
    The substantive requirement of the clause, evidently, is not that all properly shall.be taxed, but that all property shall he taxed in proportion to its value; that is, in substance, what is required by Article of Constitution of 1852. The object of the article, in other words, being directly to secure the taxation of property according to value, and not to secure the taxation of all property.
    If it be urged that the inference is to be drawn from the mere omission of the words ‘ ‘ on which taxes shall be levied in this State; that the intention was to enforce specifically the taxation of all property, may it not as well be inferred that the omission of the next clause in the Constitution of 1852 from that of 1864: “ No one species of property shall be taxed higher than another species of property of the same value on which taxes shall be levied,” authorizes the taxation prohibited by the omitted clause ?
    It is contended by defendants’ counsel that the position that all property must be taxed, is strengthened by the clause authorizing the exemption of property actually used for church, school or charitable purposes. They argue that under the rule inclusio unius est exclusio alterius, the conferring of special power to exempt from taxation property used for certain purposes, amounts virtually to a prohibition to make any exemption other than that authorized.
    The rule, it is submitted, is improperly invoked in the interpretation of the powers of a State Legislature, which, in its proper sphere is supreme, ixnless prohibited by the Federal or State Constitution.. Unlike the Federal Congress, it requires no authorization to act, but must bp prohibited to prevent action.
    I think it will be found that the special authorization to exempt property used for certain purposes was rendered necessary by the clause requiring uniformity and equality of taxation. Without such special authorization, the property of the same class and kind taxed generally in hands of others, could not be exempted because owned or used for certain particular purposes. This special authorization in no way derogates from the heretofore conceded general power to exempt vested in the Legislature. In this act there is no exemption; the first two thousand dollars are merely not taxed. It is uniform, no exceptions being made among those who are taxed.
    If the Court should be of opinion that the tax imposed by the law is a tax on property; that is, on the proceeds of the salé of goods sold by defendants, then there is no repugnancy in the act to the Article of the Constitution. If it should be considered an income tax, under the last clause of Article 124, Constitution 1864, it is in no manner violative of that article. It isatax^w rala on the amount of “business done,” equal and uniform in all respects.
    The opinion of the Judge of the Court below is confined to the decision of only one of the questions involved in the case. He decides against the constitutionality of the tax on the ground that commodities brought from one State of this Union into another are “ imports,” and if sold in the original packages in which imported, any tax on that sale is an impost duty, prohibited by the Federal Constitution. I think a careful application of the principles decided by the Supreme Court of the United States above referred to, will demonstrate his opinion to be erroneous.
    It is argued that “the history of the United States discloses that while the Union consisted of but thirteen States, with a population of only three millions of people, the conflicting regulations of the States upon the subject of commerce, and the disposition of those communities to throw the burdens of government upon strangers, were serious impediments to the prosperity and harmony of the Union. It was a material cause for the formation of the Federal Constitution. To remove the jealousies and discontents, and to prevent the injustice arising from such dispositions, the power to regulate commerce with foreign nations, and among the Stales, was conferred on Congress, and the power to levy duties on imports and exports was taken away from the States. ” This is all perfectly true, and all of the evils experienced under the original articles of confederation are completely guarded against by the fair and wise interpretation, of the Articles of the Constitution by the Supreme Court, which ‘does not go to the extent contended for—of trammelling and controlling the legitimate taxing power of the States within their own limits exercised in the case before the Court, without violating either of the articles referred to.
    
      Brief of Campbell, Spofforcl & Campbell, for defendants and appellees.
    —This cause was determined in the District Court in favor of the appellees. That Court decided that the requisition made upon the appellees was a tax upon imports from another, or other States than Louisiana, and that such a tax was violative of the Constitution of the United States.
    That it is a tax there is no question. The 3d section of the Act of 865 forms a part of the regular revenue law of the State. The words of the section are-“that there shall be assessed and collected the sum of one-quarter of one per cent, on the annual gross sales or receipts of each and every person pursuing any trade or occupation. ”
    Nor is there any serious dispute that this is a tax upon imports from another State.
    
      The evidence in the cause is free from all ambiguity. The facts proved show that the sales upon which the assessment has been made, consist wholly of the property of persons residing in other States ; that this property was prepared in those States for the market of New Orleans; that the sales made were of the property of those persons, in the same state and condition in which it was prepared; and that the money arising from the sales made was their money to be accounted for to them, and subject only to the charges of the agents they had employed to make the sales on their account.
    There were arguments employed in every other case that has arisen on this subject that cannot be used in this case. The suit is brought for the collection of the tax itself. It is not a question arising upon the failure to take a license, or for selling without a license, or for failing to obtain a stamp upon a commercial document, or upon any collateral undertaking.
    The admissions leave no doubt as to the precise question raised in this cause.
    There can be no doubt, that if the property sold by the appellees were property imported from a foreign country, the Court would not hesitate to affirm the judgment.
    The case in that aspect would be embraced within the letter and spirit of the case of Brown v. State of Maryland, 12 Wheaton 410.
    The question before the Court is then reduced to the enquiry, whether imports from another State are within the same exemption as imports from a foreign country ?
    The language of the Constitution is: “No State shall, without the consent of Congress, lay imposts or duties on imports or exports except,” etc., etc. We need not enquire of the exceptions.
    The prohibition is universal; it has no limitation as to time or place or circumstance, except the circumstances of previous consent of Congress, or the necessity of executing inspection laws.
    State power, under no circumstances, could affect property by taxation that was not brought within its limits. The prohibition of the Constitution protects all property which falls under the denomination of things imported, and all property denominated as exports. In neither case does the place of production, or of destination, form any condition upon which the prohibition is made to be operative.
    No State shall * * * levy any imposts or duties on imports or exports.
    Is there anything in the history of the clause which serves to modify its unqualified language ?
    The history of the clause furnishes the most satisfactory exposition we can make of the signification it should have.
    The Declaration of Independence published and declared: “ That the United Colonies were free and independent States;” “and that as free and independent States they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent States may or might do.”
    In 1778 these States adopted their Articles of Confederation, whereby their separate and independent character was materially altered.
    
      The 4th Article of the Confederation provided: “The better to secure and perpetuate mutual friendship and intercourse among the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and egress to and from any other State, and shall enjoy therein all the privileges of trade and eommeroe, subject to the same duties, impositions and restrictions as the inhabitants thereof, respectively; provided, that such restrictions shall not extend so far as to prevent the removal of property imported into any State to any other State, of which the owner is an inhabitant; provided, also, that no imposition, duties or restriction shall be laid by any State on the property of the United States, or either of them. ”
    The 3d section of the 6th Article provides: “No State shall lay any imposts or duties, which may interfere with any stipulations in treaties entered into by the United States in Congress assembled, with any king, prince or State, in pursuance of any treaties already proposed by Congress to the Courts of France and Spain.”
    The first section of the 9th Article, confers upon Congress “ the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the 6th Article, of sending and receiving ambassadors, entering into treaties and alliances; provided, that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners' as their own people ar.e subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever.”
    Under the Articles of Confederation, then, this was the condition of the organic law upon this vital subject. Congress had no power to impose duties on imports or exports, or to impose any restrictions upon the States, by any commercial treaty which might thereafter be made to the disfranchisement of the people of any State, or which inhibited any prohibitory regulations of the States, either upon imports or exports.
    The States had the right to lay such duties as they chose upon imports from abroad, or from any of the States, subject only to the condition that Congress might place foreigners upon the footing of citizens, as to trade, by treaty.
    That there was granted to the citizens of the States a privilege of egress and regress—the faculty of removing the property imported to another State, of which the importer was an inhabitant.
    These articles of confederation were found to be ineffectual to a vigorous prosecution of the war with Great Britain, and jeoparded the success of the revolution. They were found to be inefficient to the construction of a firm, stable and prosperous Union, after the establishment of independence by the treaty of peace in 1783.
    Their imbecility was demonstrated in the articles we have quoted above, and to amend those articles was the main object of the Convention of 1787, and the most prominent result of the Constitution adopted in 1789.
    •A reference to documentary evidence will show that the power reserved to the States over commerce, was found to be attended with inconvenience, and mischief ab initio.
    
    New Jersey addressed a memorial to Congress on the subject in 1778.
    In 1781, Dr. Witherspoon, one of the wisest of the statesmen of the revolution, presented a resolution, declaring, “ it is indispensably necessary, that the United States in Congress assembled, should be vested with a right of superintending the commercial regulations of every State, that none may take place that shall be partial or contrary to the common interest.”
    The' resolution of Virginia in 1786, appointing her commissioners to meet commissioners from those States, expresses their purpose to be “to take into consideration the trade of the United States, to consider how far an uniform system in their commercial regulations may be necessary to their common interest and permanent harmony.”
    This resolution was superinduced by a resolution of Mr. Madison, in the House of Delegates of Virginia in 1785, the preamble of which is as follows: “ Whereas, the relative situation of the United States has been found on trial to require uniformity in their commercial regulations, as the only effectual policy for obtaining, in the ports of foreign nations, a stipulation of privileges reciprocal to those enjoyed by the subjects of such nations in the ports of the United States, for preventing animosities which cannot fail to arise among the several States from the interference of partial and separate regulations,” etc., etc.
    . At the adoption, of the Federal Constitution, there was not a State in the Union in which there did not exist a variety of commercial regulations. These fell, by common consent, upon the adoption of that Constitution.
    The revenue system of the United States prior to the formation of the Constitution, was a source of as much confusion, and provoked as much anxiety and discontent as did-the commercial system.
    The United States had no power to collect a revenue for themselves. They were dependent upon the States, who were required to pay their quotas according to a constitutional rate of assessment. These quotas were, for the major portion, unpaid. In 1781, Congress made a requisition for $8,000,000. Fifteen months after the requisition was made, only a half-million of dollars had been collected.
    Congress urged upon the States to grant them the power to lay duties on imports. This plan was sent to the States, accompanied by an address prepared, by Mr. Madison, in which the necessity of the measure and the claims of national honor, public faith, duty to the suffering army, to the creditors, who in time of need had stripped themselves, that the war of independence might be prosecuted; and finally, the peril to the public safety, arising out of a disordered finance, were all luminously set forth. All this was ineffectual.
    The year 1786 found the country in the same condition of confusion and dishonor. That year was devoted to securing a call for a general Convention. That Convention met in the spring of 1787.
    The Constitution then adopted and submitted to the people for ratification in September, 1787, contains two clauses, which are material in the present inquiry. These clauses are;
    
      “ Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. ”
    “ No State shall, without consent of the Congress, lay any imposts or duties on imports or exports, except what maybe absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of Congress.”
    “ No State shall, without consent of Congress, lay any duty on tonnage.”
    There cannot be a question, that the power to regulate commerce with foreign States, among the several States, and with Indian tribes, involves the whole subject of intercourse with and between any of those governments or organizations.
    The international law, treating men as formed for society, and capable of intelligent intercourse and connections, speaks of commercial intercourse as a mutual right; that it is free and open to all. But that governments, having the guardianship of these natural rights, and a power to regulate and to restrain them, may, according to their policy, impose restraints and require conditions u.pon which their natural rights may be exercised.
    The general state of international commerce has been, and continues to be, that of restriction and mutual impositition. The inter-State commerce of the United States has heretofore been free, and to that cause as much as to any other, may be attributed its vast development, and the rapid growth of the country in material prosperity. The power granted to the United States to regulate commerce among the States has been exercised by excluding all imposition or impediment to it.
    The second quotation we have made from the Constitution, shows the sedulous care which the framers of the Constitution exhibited in protecting the commerce of the country from State regulation. The most tempting form for State interference with commerce, is that under their power of taxation. There is a rooted opinion among all classes, that taxation in the form of duties, on imports or exports, fall upon the foreigner, and that we levy our revenue in such cases out of the pockets of the stranger. A legislature rarely resists the temptation of doing so, reckless of consequences. But the necessity that exists in this country for uniformity of regulations, to prevent foreign entanglements and internal animosities and discontents, induced the framers of the Constitution to impose negative clauses, interdicting the taxation of imports or exports, without the consent of Congress.
    Mr. Madison has preserved, in his debates, the precise history of these prohibitive clauses.
    In the draught of the Constitution, as reported from the committee, Articles 12 and 13, were as follows:
    Art. 12. “No State shall coin money, nor grant letters of marque, nor enter into any treaty, alliance or confederation, nor grant any title of nobility.”
    Art. 13. “No State, without the consent of the Legislature of the United States, shall emit bills of credit, or make anything but specie a tender in payment of debts, nor levy imposts or duties on imports; nor keep ships of war in time of XDeace; nor enter into any agreement or compact with another State, or with a foreign power-” *' * *
    On the 28th of August, 1787, Mr. Madison moved: ^ “ That the words, ‘ nor lay imposts or duties on imports,’ be transferred from Article 13, where the consent of the General Legislature may license the act, into Article 12, which will make the prohibition on the States absolute. He observed, that as the States interested in this power, by which they could tax the imports of their neighbors passing through their markets, were a majority, they could not give the consent of the Legislature to the injury of New Jersey, North Carolina, etc.
    “Mr., Williamson seconded the motion.
    “Mr. Sherman thought the power might safely be left to the Legislature of the United States.
    “ Col. Mason observed, that particular States might wish to encourage, by impost duties, certain manufactures, for which they enj oyed natural advantages, as Virginia, the manufacture of hemp,” etc.
    “Mr. Madison: The encouragement of manufactures in that mode requires duties, not only on imports directly from foreign countries, but from the other States in the Union, which would revive all the mischiefs experienced from the want of a general government over commerce.”
    On the question—
    “New Hampshire, New Jersey, Delaware, North Carolina, aye—4; Massachusetts, Connecticut, Pennsylvania, Maryland, Virginia, South Carolina, Georgia, no—7.
    Article 12, as amended, was then agreed to, nem con.
    
    Article 13 was then taken up.
    “Mr. King moved to insert, after the word ‘imports,’ the words, ‘or exports,’ so as to prohibit the States from taxing either; and, on this question, it passed in the affirmative—
    “New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, North Carolina, aye—6; Connecticut, Maryland, Virginia, South Carolina, Georgia, no—5.
    “ Mr. Sherman moved to add, after the word ‘ exports,’ the words, ‘nor with such consent, but for the use of the United States;’ so as to carry the proceeds of all State duties on imports or exports into the common treasury.
    “Mr. Madison liked the motion, as preventing all State imposts, but lamented the complexity we were giving to the commercial system.
    ‘ ‘ Mr. Gouverneur Morris thought the regulation necessary to prevent the Atlantic States from endeavoring to tax the Western States, and promote their interest by opposing the navigation of the Mississippi, which would drive the Western people into the arms of Great Britain.
    “Mr. Clymer thought the'encouragement of the Western country was suicide on the part of the-old States. If the States have such different interests that they cannot be left to regulate their own manufactures, without encountering the interests of other States, it is a proof that they are not fit to compose one nation.
    “Mr. King was afraid that the regulation moved by Mr. Sherman, would too much, interfere with the policy of States respecting their manufactures, which may be necessary. Revenue, he reminded the House, was the object of the General Legislature.
    On Mr. Sherman’s motion—
    “ New Hampshire, Connecticut, New Jersey, Rennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye—9; Massachusetts, Maryland, no—2.
    3 Madison Debates, 1445, 1446, 1447.
    An examination of this debate shows that in the arrangement of this clause, there was a pervading disposition among the members to prevent the States from taxing imports in their transit from one State to another; that the suggestion of Col. Mason that the States might desire to protect their manufactures, was answered that such protection could only be made by taxing inter-State commerce, which would revive all the mischiefs experienced from the want of a general government over commerce; that on the motion of Mr. King, the prohibition was enlarged to embrace exports; that the clause of prohibition was intensified, by adding to the conditions on which Congress might allow taxes on imports or exports, that no portion of the money should go into the State treasury.
    The remarks of Mr. Madison and Gouverneur Morris, show the sentiment that operated upon the Convention.
    The results obtained by the action of the Convention are described by Mr. Curtis, in his history of the Constitution, and Judge Story’s Com. on Con., $ 1013, 1061, 1067. 2 Curtis’ His., 368, 369, 370.
    The whole foundation of the Attorney-General’s argument is, that this prohibition refers exclusively to imports from foreign countries. “ Such, it is thought, is the universal acceptation of the term, as well as the interpretation placed upon it by the highest authority.”
    We have looked in vain for that “ highest authority, ” which the learned Attorney-General refers to. The observation of Judge McLean certainly proves nothing. Imports into the United States undoubtedly means foreign importations, and in the laws, of the United States imports refer certainly to foreign productions. Because, the United States embraces all the States, and imports into any part of the, United States, as respects the revenue laws, means a foreign import. But the inquiry is, what is the meaning of imports, as regards each individual State, in the clause of the Constitution that prohibits taxes on imports and exports ? We have seen the occasion for the clause in the Constitution, and that it does refer to any imports into the State, whether as resulting from foreign or internal commerce.
    To proceed to the examination of the License cases, which form the reliance of the Attorney-General. In those cases, there is no opinion of the Court as a Court. The Judges, being unable to agree upon an opinion, they severally expressed their own views. The case, therefore, is not one of much authority. Eor the several Judges have expressed such a variety of views that no common opinion can be collected. The Supreme Court of the United States, in 2d Wallace, 730, (Gilman v. Philadelphia) thus describes the result of the judgment: “But a State, in the exercise of its police power, may forbid spirituous liquor imported from abroad, or from another State, to be sold by retail, or to be sold without a license. ”
    
      In examining the case in New Hampshire, it will be seen upon what grounds the Courts of that.State defended the validity of their statute, and what exceptions were made to their decisions, and what were presented by the writ of error to the Supreme Court of the United States.
    The Courts of New Hampshire determined that the requirement upon a vendor of spirituous liquors to obtain a license, before making a sale, and upon his failure to do so, subjecting him to a penalty, was not a tax, although the property sold came from another State, and that it did not fall within the clause of the Constitution, imposing a tax on imports.
    The same Court charged the jury, that the Legislature of New Hampshire could not regulate commerce between the States, nor prohibit the introduction or sale of commodities from another State; but that a State might pass health laws and police laws, which would, to a certain extent, affect foreign commerce, and commerce between the States, and that this statute was a regulation of this character. 5 How. S. C. R. 556 and 598, in Catron’s opinion.
    It will be seen that the two points presented were, was this demand for a license, as a qualification to the faculty of selling liquors, to be regarded as a tax, or was it to be regarded as a police regulation, to avoid the noxious influence of unlicensed sales of intoxicating liquors ?
    The requirement of the license may not have been a tax at all; no charge may have been made for one, or so small a charge, as to preclude the belief that any revenue was expected. It may be that inquiries of the character of the license, and the obligations imposed upon him, showed clearly that the object of the law was to prevent the spread of intenqperance. In this asiDect, there could be no ground for asserting that this penal law was a revenue measure.
    Supposing the law had been that upon all spirituous liquors sold, there shall be paid to the State five per cent, of the amount. The Court of New Hampshire could not then have said, that as no tax had been levied no question arose under the constitutional prohibition.
    In the case of Brown v. Maryland, 12 Wheat. 410, the law imposed a prohibition upon sales by importers, until they should pay for their license $50. This applied to the entire body of importers, and to the importers of all commodities. Nothing was required of an importer but the payment for the license. There was no consideration for the money but the grant of the privilege to sell, and that would be granted to anyone for the money.
    The license laws of New England, on the contrary, grant a discretion to the police courts, in reference to the number and character of the licenses. Those licenses are placed under restrictions, as to the quantity to be sold, for use on their xDremises, and are subject to punishment if they suffer a man to drink to intoxication in their houses. These and other conditions induced the Court to say that the question involved was not one of taxation.
    Upon the second question involved, in the case from New Hampshire, the Supreme Court were all agreed that the law was constitutional, and the majority of the Court agreed to this upon the ground that is declared in the Supreme Court of New Hampshire.
    
      The argument upon this precise point was placed by Mr. Justice Greer, in a very clear and distinct light.
    The diversities of opinion that existed in the Court, in reference to the extent in which the States might make regulations affecting the means and machinery of commerce, appeared in the discussions on the Passenger cases, reported in 7 How. 283.
    These cases involved three questions: 1st. Whether the power to regulate commerce extended to embrace immigrant and other passengers; whether a tax upon the ship or immigrants, for the purpose of creating a fund for maintenance and relief of that class, was prohibited by the Constitution or acts of Congress. A majority of the Court decided the tax laws to bo unconstitutional. The Court gave no opinion, and the majority concurred in none, although Mr. Justice Wayne collated, compared, and apparently with the consent of the Judges, announced the conclusions.
    I consider the separate opinions of the Judges of that Court as of no great importance in settling a question. The opinions of the Court, as a Court,, are made up after consultation—after an expression from 'each Judge—and the opinion of the Court is submitted, and adopted in conference beforg read in the Court.
    The separate opinion of a Judge is not read in conference,,not canvassed, and binds no one afterwards as authority. For this reason I do not refer with much stress to anything that has been said, either in the License or Passenger cases.
    In a later case, involving the pilotage laws. Gooley v. Wardens of Philadelphia, 12 How. 300, the dissent in the Court was much diminished, and a principle laid down more practical than those that appeared in previous discussions. The Court admitted, that there were some matters of commercial regulation to which State power could not extend, and there were others to which State power could extend in the absence of controlling regulation. But that such was the variety and extent of the operations of commerce, that no exact and precise demarcation between State and Federal power could be authoritatively announced in a single case.
    “The power to regulate commerce embraces a vast field,” say the Court, “containing not only many, but exceedingly various subjects, quite unlike in their nature—some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every part; and some, like the subject now in question, imperatively demanding that diversity which can alone meet the local necessities of navigation. ”
    We have followed the train of the Attorney-General’s argument with a view of showing that it is outside of the case before the Court.
    We have no cause for inquiry, whether this is a regulation of commerce by the State, which infringes the exclusive authority of Congress, or whether it may be reconcilable with the admission of the power of Congress, in the absence of congressional regulations. The Constitution has not left the subject of our inquiry in any doubt. It has declared that “no State, without the consent of Congress, shall impose any impost or duty on imports or exports.”
    How far the States may protect the community from pauperism, disease, crime, by police regulations, in reference to sales of liquor, is a question which can never arise upon a revenue law, exacting duties on imports or exports.
    The States are prohibited from imposing imposts or duties in any form, and State regulations, to be exerted effectually for police purposes, must not wear the garb of a tax bill.
    Nor do the inquiries of the Court, relative to nuisances in water courses and impositions upon navigation, apply to this case. For, although in those discussions the power of the United States is maintained, yet they stand upon inferior grounds to those held by the appellees before the Court.
    The appellees refer the Court to the constitutional inhibition upon the States to impose duties on imports, and we prove that the property upon which this tax was levied, was prepared for market in New Orleans, in another State, and sold in that form by his agent. The property was an export from the State of production, and an import at the place of sale. We are answered that this clause does not apply to inter-St-ate commerce; that imports are foreign imports, and this is proved by fragmentary citations from discussions on the boundaries between police and commercial power.
    The controlling decisions upon this subject are those in which the Supreme Court of the United States have made decisions upon the power of the States to tax. These cases were decided by the Court, and with little or no dissent. They embrace a variety of cases, which fully include this.
    The boundaries of the power of the States to levy taxes, were declared in the case of McCulloch v. Maryland, 4 W. 316.
    “The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission. ” “It does not extend to those things which are withdrawn by the Constitution of the United States from its operation and control. ” “ The means which are employed by Congress to carry into execution power conferred on that body by the people of the United States,” are exempt. The stock issued by the United States for loans made to the United States; the stock of the United States Bank; the salaries of officers of the United States, are severally exempt. Commissioners of M'ie v. Doblin, 16 Bet. 315. Jfew York v. Commissioned' of Taxes, 2 Black. R. 620.
    The States cannot impose duties ,on imports in the form of a tax on licenses to importers. 12 Wheat. 410.
    They cannot tax ships belonging to a citizen of another State, temporarily engaged in the navigation of its waters, but having no abiding place in the State. 17 Howard, 597.
    They cannot impose a tax upon gold exported from California to New York. 24 Howard, R. 169.
    In the first of these cases, Brown v. Maryland, the entire operation of the clause in the Constitution was considered by the Court. The Court had been called, in antecedent cases, to consider of the taxing' power of the States, and whether in any case limited, and the extent of their powers over commercial agencies and instrumentalities, and now the question comes up whether the taxing power of the States respecting commerce was at all prohibited, and how far the prohibition extended. The opinion of the Court was that it applied to preclude taxes on imports and exports arising from foreign or iuter-State commerce. That is, that the prohibition was general.
    It is difficult to find a more careful, candid and considerate judgment than the one delivered by the Supreme Court in that case.
    Every word seems to have been weighed before it was uttered. Every depth was sounded before the Court dropped its anchor.
    Now it is idle to attempt to shake the authority of this judgment by quoting from Judge A. or Judge B. The Court promulgated that opinion, and its authority is not to be impugned except by the Court.
    But the Court never dreamed of shaking it. Whenever any case within its principle has come up, its authority has been Recognized.
    In the case of Almy v. California, 24 Howard, 169, Chief Justioo Taney, speaking for the entire Court, said: “We think this case cannot be distinguished from that of Brown v. Maryland, reported in 12 Wheaton, 419. That case was decided in 1827, and the decision has always been regarded and followed as the true construction of the clause of the Constitution in question.”
    The material facts of the eases that identified them, was that a State had levied a tax—in the first case—upon foreign imports; in the last case, upon exports to another State.
    But the prohibition to levy taxes upon imports from any place, or exports to any place, is absolute, and so the Court decided in Brown v. Maryland, and so the Court affirmed it to have been in Almy v. California.
    
    The Attorney-General cannot reconcile that opinion, with some previous fragment of an opinion he has found of the late venerable Chief Justice in an earlier case.
    The answer may possibly be found in the fact that in the case of Almy, Chief Justice Taney was the organ of the entire Court, and expressed their judgment, and his concurrence with it.
    His personal opinion in another case, was quite a different thing from his opinion delivered in the name of the Court, and by its authority. ‘
    It ’may have been that the Chief Justice had become satisfied that there could be no improvement to the rule of Brown v. Maryland, and that stability ought to be given to it by the judgment of the entire Court.
    But it is quite probable that a close scrutiny would show that there had been no incongruity. But if the Chief Justice had expressed some opinion inconsistent with that subsequently given in Almy v. California, does that alter the authority of the decision in that case? That opinion has all the weight that the concurring judgments of all the members of the Court can give to it. The opinion is clear, distinct and pertinent. The facts of the ease are few and undisputed.
    An invoice of gold was shipped from the port of San Francisco to the city of New York. The revenue law of California required a stamp to be placed on the bill of lading, showing the shipment. This was not done, because it was insisted that this was a tax on exports, and therefore prohibited by the Constitution of the United States.
    The Court decided, that though this tax was not formally a tax on the invoice of gold dust, it was so in intention and effect, and that a tax upon the gold dust imported to New York was a violation of the Constitution.
    When we consider that the prohibitory clause of the Constitution extends as well to imports as to exports, and that the object of introducing that prohibition upon the power of State taxation was to protect interstate commerce, it will at once appear that this authority is controlling in this case.
    The facts established in the case before the Court show that the property held by the appellees was temporarily in New Orleans to find a market; that it had never become mingled with other property of the State; that the owners were non-residents, and were liable to taxes elsewhere.
    The case meets all the conditions that are set forth in the case of Brown v. Maryland, to exclude $he jurisdiction of the State of Louisiana, in the matter of taxation, unless it shall be determined that the power of the State over property imported from the States of the Union is unlimited.
    But, in our judgment, the history of the Constitution, the contemporaneous judgments upon it, and the mischiefs the clause was intended to remove, alike show that the States have not such power.
   Tabiaeeebo, J.

This action was commenced on the part of the State against the defendants, to compel them under an act of the Legislature of the State, approved April 4th, 1865, to pay over the sum of 'twelve hundred dollars, alleged to be due to the State, arising from the tax of one-fourth of one per cent, imposed by that act upon the gross amount of sales of defendants, as commission merchants, from 1st July to 31st December, 1865, and twenty per cent, on the amount of the tax as a penalty for the non-compliance on their part with the act aforesaid; the whole amount, tax and penalty, being twelve hundred dollars.

In their answer, the defendants state that between the 1st July and 31st of December, 1865, they sold in the city of New Orleans of “Western Produce” to the amount of four hundred thousand dollars, consisting of bacon, pork, flour, corn, rope, lard, and other articles of that kind ; that these commodities were consigned to them by citizens of the United States, residing beyond the limits of the State of Louisiana, for salo, and that the same were .sold by them for and on account of the non-resident owners, who were citizens of Missouri, Illinois, Indiana, Ohio, Kentucky, and other States on the Mississippi river, and its various tributaries; that these sales were made of the said produce in the form in which it was prepared by their constituents, beyond the limits of Louisiana for market, for a commission of two and a half per cent, upon the gross amount of the sales. They contend that the property thus introduced into the State of Louisiana from other States and thus sold, is exempt by the Constitution of the United States from import duty, or other tax for the benefit of the State of Louisiana. They further aver, that the tax aforesaid is unequal, as it discriminates in favor of a large class of persons who pursue the same business with themselves, and that it is for this reason, repugnant to the Constitution of the State of Louisiana, in relation to the imposition of taxes.

Judgment was rendergej ip the Cou^-t below in favo;- of the defendants, and tbe State appeals,

In. the formation of the Constitution of the United States, it was foreseen that the inter-communication between the States might be a fruitful source of agitation and trouble. Under the Articles of Confederation this trouble was distinctly foreshadowed, as well as that likely to arise from leaving to the States the power to lay impost upon foreign importations. The last-named pretension was disposed of by the distinct enunciation contained in section 10 of the 1st Article, that “No State without the consent of the Congress shall lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of the Congress.”

The provisions contained in this Article of the Constitution, it is contended in this case by the Attorney-General, refers exclusively to imports from foreign countries; and, in an argument of much learning and research, he maintains that legislation on the subject of inter-State commerce, is not exclusively entrusted by the Constitution to Congress.

From numerous authorities invoked by him he deduces the conclusion, that in'the ease before the Court “the tax on gross sales or receipts is simply a legitimate exercise of the taxing power, and in no manner a regulation of commerce; nor is it even an indirect interference with the regulation of commerce; and should it be considered a regulation of commerce, it is not thereby repugnant to the Federal Constitution.”

The doctrine,, that the States have a concurrent power with Congress “to regulate commerce between the States,” would seem to involve the very difficulty which it was obviously the purpose of the framers of the Constitution to provide against. Looking to the objects aimed at, the inference seems clear that they intended to prohibit the exercise of this power by the States. The abuse to which such a power might lead may well be illustrated by the position and commercial advantages of the State of Louisiana. It controls the outlet to the ocean of the great river, which, with its vast tributaries, flows through the boundaries of so many wealthy and populous States. Near that outlet, and within the same State, is found the common mart at which the various products of the States of the Mississippi must all meet for sale, or for exportation to other States of the Union or to foreign countries. What if Louisiana should impose a tax upon cotton, coming from Arkansas to New Orleans to be shipped to Massachusetts, or upon tobacco from Kentucky and Missouri, destined for Europe? It is plain that this would be in derogation of the common right which belongs to the people of all the States of the Union, the right to the free use of the Mississippi river. It would be, in the one case the laying an export duty which is plainly forbidden, and in the other, the imposing a burden upon the commercial intercourse between the States, and to that extent a regulating the commerce between them. And would it not amount to the same thing if Louisiana should impose a tax upon the products of other States brought to New Orleans for sale, belonging to individuals of other States, and sold here as their property; or place the tax upon the proceeds of such property when ’ sold? It is shown, in the case in controversy, that the products sold by the defendants were prepared and put up by the owners and producers in the States from whence they were brought, and sold in New Orleans in the same form in which they came here, that they were sold for the Owners, and that the defendants have no interest whatever in the proceeds beyond their commissions for making the sales. Until a change in the ownership, or in the condition of the merchandise has taken place, so that it becomes incorporated with, and forms part of the property of the State, it is not subject to State taxation. When sold, the money represents the thing sold; it belongs to a citizen of another State, and is equally exempt from the tax.

But, whatever opinions may have been at any time expressed, favoring the view that the power to regulate commerce among the States is not exclusively vested in Congress, we consider that the authorities are decidedly against that opinion. The question was considered by the Supreme Court of the United States, in the case of Gibbons v. Ogden, 9 Wheaton 1. It was there declared that the power of Congress “ to regulate commerce with foreign nations and among the States ” is complete in itself, and that it has no limitation other than are presented by the Constitution. In the same Court the subject underwent a fuE examination, in the case of Brown v. The State of Maryland, 12 Wheaton 410. This case arose upon a statute imposing a license tax upon all persons who should sell imported goods. It was held to be a tax upon all imports—an import duty, and was therefore unconstitutional. The Court said: “All must perceive that a tax upon an article imported for sale is a tax on the article itself. ’ It is true the State may tax occupations generally, but this tax must be paid by those who employ the individual, or is a tax on his business. The lawyer, the physician or the mechanic, must either charge more on the article on which he deals or the thing is taxed through his person. This, the State has a right to do, because no constitutional prohibition extends to it. So a tax on the occupation of an importer is, in like manner, a tax on importation. It must add to the price of an article, and be paid by the consumer or by the importer himself, in like manner as a direct duty on the article itself would be paid. This the State has not the right to do, because it is prohibited by the Constitution.” In conclusion, the Court say: “It may be proper to add that we suppose the principles laid down in this case to apply equally to importations from a sister State.” In what are called the Passenger cases, 7 Howard 410, the question was whether the States could levy a tax upon passengers coming in foreign vessels to the United States. Mr. Justice Wayne, in delivering his opinion, said: “Do not the constitutional powers of the United States act upon the territory as well as upon the sovereignty of the States to the extent of what was their sovereignty, before they yielded it to the United States. . Can any one of the sovereign powers of the United States be carried out by legislation without acting upon the territory and sovereignty of the States? This being so, Congress may say and does say, whence a voyage may begin in the United States, and where it may end in the United States. Though in its transit it enters the territory of a State, the political jurisdiction of the State cannot interfere with it by taxation or otherwise until the yoyage has en4ed; pot until the perspns who have been brought as passengers have been landed or the goods which may have entered as merchandise, have passed from the hands of the importer, or have been made by himself a portion of the mass of the general property of the State. ”

To the same purport is the case of Hays v. The Pacific Railroad Company, 17 Howard 597. A tax was imposed by the State of California upon the steamships of a line of vessels of- that class engaged in navigating the Pacific Ocean from St. Francisco to Panama. The Court held for the the same reasons given in the Passenger oases, that the State had no jurisdiction.

The case of Almy v. California, 24 Howard 169, was that of a tax imposed by the State upon the gold or silver coin, or gold dust transported from any place within the State to any place without the State. The tax was laid in the form of a stamp duty on the bill of lading. The Court held that it was a tax on exports, and was unconstitutional. In this case the export was from California to New York. We regard it as important, because it affirms the case of Brown v. The State of Maryland. In Almy v. California, the Supreme Court remarked, that the decision in Brown v. The State of Maryland, has always been regarded and followed as the true construction of the clause in the Constitution now in question. It shows that the Court regarded the inter-State commerce as standing upon the same ground, as to the constitutional protection, as foreign commerce; and that the closing paragraph, which we have before cited from the opinion in the ease of Brown v. Maryland, viz: “ that the principles laid down in this case apply equally to importations from a sister State,” announces the settled doctrine on the subject.

The conclusion we reach, after a general view ot the question, and a careful examination of the authorities, renders it unnecessary for us to consider the other ground of defence, the illegality of the tax arising from its alleged inequality, and therefore in derogation of Article 124 of the Constitution of the State of Louisiana.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.  