Imágenes de páginas
PDF
EPUB

In Austin v. Tennessee, decided six months after the May case, the court was confronted by a case in which there was no larger bundle or case, the articles in question cigarettes being shipped and transported in small paper packages, without, however, being separately addressed, these packages being taken of American merchants will readily occur to everyone. The result would be that there might be upon the shelves of a merchant in this country, ready to be used and openly exposed for sale, commodities or merchandise consisting of articles separately wrapped and of enormous value that could not be reached for local taxation until after he had sold them, no matter how Ing they had been kept by the importer before selling them. It cannot be cverlocked that the interpretation of the Constitution for which the plaintiffs contend would encourage American merchants and traders seeking to avoid state and local taxation, to import from abroad all the merchandise and commodities which they would need in their business. There are other considerations that cannot be ignored in determining the time at which goods imported from foreign countries lose their character as imports and may be properly regarded as part of the general mass of property in the State, subject to local taxation. If, as the plaintiffs insist, each parcel separately wrapped and marked and put in the shipping box, case, or bale, is an original package which, until sold, no matter when, would retain its distinctive character as an import, although the box, case, or bale containing them had been opened and the separate parcels all exposed for sale, what stands in the way of European manufacturers opening branch houses in this. country, and selling all their goods put up in the form of separate parcels and packages, without paying anything whatever by way of taxation on their goods as property protected by the laws of the State in which they do business? Indeed, under plaintiff's view, the Constitution secures to the manufacturers of foreign goods imported into this country an immunity from taxation that is denied to manufacturers of domestic goods. An interpreta tion attended with such consequences cught not to be adopted if it can be avoided without doing violence to the words of the Constitution. Undoubtedly the payment of duties imposed by the United States on imports gives the importer the right to bring his goods into this country for sale, but he does not, simply by paying the duties, escape taxation upon such goods as property after they have reached their destination for use or trade, and the box, case, or bale containing them has been opened and the goods exposed to sale." "In our judgment," the court conclude, "the original package' in the present case was the box or case in which the goods imported were shipped, and when the box or case was opened for the sale or delivery of the separate parcels contained in it, each parcel of goods lost its distinctive character as an import and became property subject to taxation by the State as other like property situated within its limits."

[ocr errors]

Four justices dissented without, however, stating their reasons. 36 179 U. S. 343; 21 Sup. Ct. Rep. 132; 45 L. ed. 224.

from loose piles of such packages at the factory by the express company in baskets furnished by it, transported in such baskets, and emptied therefrom on the counters of the consignees in the States to which shipped. IIere, though there was no larger tax or bale, the court declined to hold the small packages to be the original" packages, and said that the original package, if there were one, was the basket.

[ocr errors]

The court say: "The case under consideration is really the first one presenting to this court distinctly the question whether, in holding that the State cannot prohibit the sale in the original package of an article brought from another State, the size of the package is material." After citing cases, in which, however, this question had been foreshadowed, the court continue: "The real question in this case is whether the size of the package in which the importation is actually made is to govern; or, the size of the package in which the bona fide transactions are carried on between the manufacturer and the wholesale dealer residing in different States. We hold to the latter view. The whole theory of the exemption of the original package from the operation of state laws is based upon the idea that the property is imported in the ordinary form in which, from time immemorial, foreign goods have been brought into the country. These have gone at once into the hands of the wholesale dealers, who have been in the habit of breaking the packages and distributing their contents among the several retail dealers throughout the State. It was with reference to this method of doing business that the doctrine of the exemption of the original package grew up. But taking the words original package' in their literal sense, a number of so-called original package manufactories have been started through the country, whose business it is to manufacture goods for the express purpose of sending their products into other States in minute packages, that may at once go into the hands of the retail dealers and consumers, and thus bid defiance to the laws of the State against their importation and sale. In all the cases which have heretofore arisen in this court the packages were of such size as to exclude the idea that they were to go directly into the hands

[ocr errors]

of the consumer, or be used to evade the police regulations of the State with regard to the particular article. No doubt the fact that cigarettes are actually imported in a certain package is strong evidence that they are original packages within the meaning of the law; but this presumption attaches only when the importation is made in the usual manner prevalent among honest dealers, and in a bona fide package of a particular size. Without undertaking to determine what is the proper size of an original package in each case, evidently the doctrine has no application where the manufacturer puts up the package with the express intent of evading the laws of another State, and is enabled to carry out his purpose by the facile agency of an express company and the connivance of his consignee. Practically the only argument relied upon in support of the theory that these packages of ten cigarettes are original packages is derivable from the Revised Statutes, § 3392, which requires that manufacturers shall put up all cigarettes made by or for them, and sold or removed for consumption or use, in packages containing ten, twenty, fifty, or one hundred cigarettes each. This, however, is solely for the purpose of taxation-a precaution taken for the better enforcement of the internal revenue law, and to be read in connection with Section 3243, which provides that the payment of any tax imposed by the internal revenue laws for carrying on any trade or business shall not be held to exempt any person from any penalty or punishment provided by the laws of any State for carrying on the same within such State, or in any manner to authorize the commencement or continuance of such trade or business contrary to the laws of such State.' "37

In this Austin case, it is clear that the court is not at all sure that from the very circumstances of the case the original package doctrine was applicable; and this became still clearer in Cook v. Marshall, as decided in 1905, in which there was not even a basket, the small packages being shipped absolutely loose, and, presumably, shoveled into and out of the car, and delivered in that con

38

27 Four justices dissented.

38 196 U. S. 261; 25 Sup. Ct. Rep. 233; 49 L. ed. 471.

dition to their consignees. The court, however, held these small packages, even before opening, subject to the police and taxing powers of the State.

These cases sufficiently establish the fact that the original package doctrine is not so much a rule necessarily to be followed by the court for fixing precisely the time at which interstate commercial transactions end and the full state authority over the articles transported attaches, as it is a test which in many cases may conveniently be applied for determining this fact. And that when the nature of the case is such as to render this test inapplicable, the court will have to ascertain from other circumstances whether or not interstate commerce has ended.39

302. Summary: General Definitions of Commerce.

By way of summary of what has gone before, the following general definitions of commerce may be given.

"Com

In County of Mobile v. Kimball40 the court declare: merce with foreign countries and among the States, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities.”

In Gloucester Ferry Co. v. Pennsylvania1 the court say: "Commerce among the States consists of intercourse and traffic between their citizens and includes the transportation of persons and property and the navigation of public waters for that purrose, as well as the purchase, sale, and exchange of commodities."

§ 303. Exclusiveness of Federal Control over Interstate Com

merce.

The federal authority over interstate commerce is not in terms made exclusive, and the courts have at times varied their views as to the extent to which an exclusiveness is to be deemed implied. From the beginning the States acted upon the assumption that

39 Cf. Prentice and Egan, p. 70.

40 102 U. S. 691; 26 L. ed. 238.

41 114 U. S. 196; 5 Sup. Ct. Rep. 826; 29 L. ed. 158.

they were not deprived of power to grant to persons and corpo rations exclusive privileges with reference to the carrying on upon land of commerce between themselves and other States; and this practice was acquiesced in by the Federal Government. As to the carrying on of interstate commerce by water, however, it seems to have been more generally held that the federal jurisdiction was exclusive. This, however, was not judicially determined until the decision of the great case of Gibbons v. Ogden.42

$ 304. Gibbons v. Ogden.

In this case it was held that the grant by the State of New York to an individual of an exclusive right to navigate its waters with steam vessels had no constitutional validity in so far as interstate or foreign commerce was affected. In support of this judgment, Marshall, in his opinion, laid down in general terms the doctrine that by the commerce clause, the Federal Government is granted an exclusive control of commerce between the States, and with foreign countries, and that, therefore, it is beyond the constitutional power of the States to grant, or to withhold, interstate or foreign commercial privileges.

In support of the doctrine that the grant to the Federal Government of the power to regulate interstate and foreign commerce did not exclude the States from a regulative power within the same field, it was argued by the counsel that this was the accepted doctrine with reference to the taxing power., As to this, Marshall, however, replied: "Taxation is the simple operation of taking small portions from a perpetually accumulating mass, susceptible of almost infinite division; and a power in one to take what is necessary for certain purposes, is not, in its nature, incompatible with a power in another to take what is necessary for other purposes. Congress is authorized to lay and collect taxes, etc., to pay the debts, and provide for the common defense and general welfare of the United States. This does not interfere with the power of the States to tax for the support of their own governments; nor is the exercise of that power by the States an exer42 9 Wh. 1; 6 L. ed. 23.

« AnteriorContinuar »