power to tax any personal property found within its jurisdiction, without regard to the place of the domicile of the owner; and a state tax imposed upon the sleeping cars of a foreign corporation, engaged in interstate commerce, taking as a basis of assessment such proportion of the capital stock of the company as the number of miles over which it ran its cars in the state bore to the whole number of miles, in that and other states, over which its cars were run, was upheld as a valid exercise of the taxing power of the state.22 Money loaned on notes and mortgages in a state other than that of the domicile of the owner, which, with the notes and mortgages, is kept in the state where loaned, for use or reinvestment, is taxable in the state where it is loaned, and not in the state of the owner's domicile.23

In the case in this section first above cited, Mr. Justice Gray, delivering the opinion of the court, said:

"No general principles of law are better settled, or more fundamental, than that the legislative power of every state extends to all property within its borders, and that only so far as the comity of that state allows can such property be affected by the law of any other state. The old rule expressed in the maxim mobilia sequuntur personam, by which personal property was regarded as subject to the law of the owner's domicile, grew up in the middle ages, when movable property consisted chiefly of gold and jewels, which could be easily carried by the owner from place to place, or secreted in spots known only to himself. In modern times, since the great increase in amount and variety of personal property, not immediately connected with the person of the owner, that rule has yielded more and more to the lex situs, the law of the place where the property is kept and used. As observed by Mr. Justice 'Although movables are

Story in his commentaries:

*

*

for many purposes to be deemed to have no situs, except that of the domicile of the owner, yet this being but a legal fiction, it yields, whenever it is necessary for the purpose of justice,

22 Pullman Palace Car Company v. Commonwealth of Pennsylvania, 141 U. S. 18, 36 (35:613).

23 New Orleans v. Stemple, 175 U. S. 309, 323 (44:174), and authorities cited; State Board of As

sessors v. Compton National D'Escompte, 191 U. S. 388, 405 (48:232); Bristol v. Washington County, 177 U. S. 133 (44:701); Blackstone v. Miller, 188 U. S. 189 (47:439).

that the actual situs of the thing should be examined. A nation within whose territory any personal property is actually situate has an entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situate there.'

"For the purposes of taxation, as has been repeatedly affirmed by this court, personal property may be separated from its owner; and he may be taxed, on its account, at the place where it is, although not the place of his own domicile, and even if he is not a citizen or resident of the state which imposes. the tax. It is equally well settled that there is nothing in the constitution or laws of the United States which prevents a state from taxing personal property, employed in interstate or foreign commerce, like other personal property within its jurisdiction.

"Ships or vessels, indeed, engaged in interstate or foreign commerce upon the high seas or other waters which are a common highway, and having their home port, at which they are registered under the laws of the United States at the domicile of their owners in one state, are not subject to taxation in another state at whose ports they incidentally and temporarily touch for the purpose of delivering or receiving passengers or freight. But that is because they are not, in any proper sense, abiding within its limits, and have no continuous presence or actual situs within its jurisdiction, and therefore can be taxed only at their legal situs, their home port and the domicile of their owners.

99 24

§ 188. Same-Same-Inheritance tax.-The state may impose a tax upon the right or privilege of taking property by devise or descent, called an inheritance tax. Regarding this species of taxation it is said:

"1. An inheritance tax is not one on property, but one on succession. 2. The right to take property by devise or descent is the creature of the law, and not a natural right-a privilege, and therefore the authority which confers it may impose conditions upon it. From these principles it is deduced that the states may tax the privilege, discriminate between relatives, and between these and strangers, and grant exemptions, and

24 Pullman Palace Car Company v. Commonwealth of Pennsylvania, supra.

are not precluded from this power by the provisions of the respective state constitutions requiring uniformity and equality of taxation."' 25

§ 189. System of government not changed by the adoption of the late amendments.-The adoption of the thirteenth, fourteenth and fifteenth amendments was followed by some extreme views as to their effect upon the structure of the government as it had previously existed, and some of them continue to be pressed before the supreme court of the United States upon writs of error to the state supreme courts. It has been contended that the adoption of the amendments has had the effect: 1. To transfer and surrender to the federal government a large share of the municipal sovereignty of the states, involving powers of the most ordinary and fundamental character, and which had been theretofore universally conceded to the states.26 2. That the provisions contained in the first ten amendments to the federal constituion, so far as they secure and recognize the fundamental rights of the individual as against the exercise of federal power, are by virtue of the late amendments to be regarded as privileges or immunities of all citizens of the United States, and that, therefore, the states cannot provide for any procedure in the state courts which could not be allowed and followed in a federal court because of the limitations contained in the first ten amendments.27 These contentions have been put forth: 1. By the congress of the United States, manifested by a large mass of purely municipal legislation, much of which has been declared unconstitutional and void by the supreme court.28 2. By (1) disappointed liti

3, 62 (27:836), holding unconstitutional and void the 1st and 2nd sections of the Civil Rights bill, March 1, 1875, 18 U. S. Stat. at L. 335; United States v. Harris, 106 U. S. 629, 644 (27:290), holding unconstitutional and void the 2nd section of the Act of Apr. 20, 1871, 17 U. S. Stat. at L. 13, 14 (sec. 5519, U. S. Rev. Stat.); United States v. Reese, 92 U. S. 241, 256 (23:563), holding unconstitutional and void the 3rd and 4th sections of the Act of May 31,

,29

gants in civil cases, 20 and (2) by persons convicted of crime, 30 who, by writs of error from the supreme court of the United States, to the state courts, have assailed the particular state legislation under which their hopes have been disappointed, as being in conflict with the guaranties of the amendments. But an examination of the authorities above cited in this section will show that, in the opinion of the supreme court, the adoption of the late amendments did not change or destroy any of the main features of the governmental system, nor change the relations of the state and federal governments to each other, nor the relation of those governments to the people, nor disturb the distribution of governmental powers between the state and federal governments, as they had previously existed; nor have the effect to apply the guaranties of the first ten amendments to the states or to make the provisions thereof restraints upon the state governments.32

$ 190. The police power of the states preserved intact. It is the settled doctrine of the supreme court of the United States, announced in an unbroken line of decisions, that the states did not intend, by the adoption of the fourteenth amendment, or

1870, 16 U. S. Stat. at L. 140 (secs. 2007, 2008, 5506, U. S. Rev. Stat.); James v. Bowman, 190 U. S. 127, 142 (47:979), holding unconstitutional and void the 5th section of the Act of May 31, 1870 (sec. 5507, U. S. Rev. Stat.). See also Lackey v. United States, 46 C. C. A. 189; Karem v. United States, 57 C. C. A. 486.

29 Slaughter-House Cases, 16 Wall. 36, 130 (21:395); Munn v. Illinois, 94 U. S. 113, 134 (24:77); Davidson v. New Orleans, 96 U. S. 97, 105 (24:616); McMillen v. Anderson, 95 U. S. 37, 42 (24:335); Barbier v. Connolly, 113 U. S. 27, 31 (28:923); Iowa C. R. Co. v. Iowa, 160 U. S. 393 (40:469); Mug ler v. Kansas, 123 U. S. 623, 678 (31:205); L. & N. R. Co. v. Commonwealth of Ky., 161 U. S. 677, 704 (40:849); Bowman v. Lewis, 101 U. S. 22 (25:989).

30 Hurtado v. Cal., 110 U. S. 516, 558 (28:232); Ex parte Kemmler, 136 U. S. 436, 449 (34:519); Gitson v. Mississippi, 162 U. S. 565, 592 (40:1075); Neal v. Delaware, 103 U. S. 370 (26:567); Bush v. Kentucky, 107 U. S. 110 (27:354); Virginia v. Rives, 100 U. S. 313 (25:667); United States v. Cruikshank, 92 U. S. 542 (23:588); Caldwell v. Texas, 137 U. S. 692 (34:816); Leeper v. Texas, 139 U. S. 462, 467 (35:225); Maxwell v. Dow, 176 U. S. 581, 617 (44:597). 31 See specially Slaughter-House Cases, supra, and Re Kemmler,

supra.

32 Maxwell v. Dow, 176 U. S. 581, 617 (44:597); Hurtado v. Cal., 110 U. S. 516 (28:232); Spies v. Illinois, 123 U. S. 131, 166 (31:80); Brown v. New Jersey, 175 U. S. 172, 174 (44:119).

the adoption of any other amendment, to impose a restraint upon their power, sometimes called the police power, to prescribe regulations for the protection and promotion of the interests, convenience, safety, health, life, peace, morals, education, and good order of society, and to enact and enforce laws for the repression and punishment of crime, and to increase the industries of the state, develop its resources, and add to its wealth and prosperity; and that, as government was organized for the protection and promotion of those objects, it cannot divest itself of the power to provide for them, and the fourteenth amendment was not designed to interfere with the exercise of that power by the states. 33 The police power was not by the federal constitution nor any of the amendments thereto transferred to the national government, but was reserved to the states, and upon them rests the duty of so exercising it as to protect the public health and morals; and while, of course, that power cannot be exercised by the states in any way to infringe upon the powers expressly granted to congress, yet until there is some invasion of congressional power or of private right secured by the federal constitution, the action of the states in the exercise of this important power cannot be questioned in the courts of the United States.3 34

The thirteenth and fourteenth amendments were first brought under view of the supreme court of the United States for construction, upon a writ of error to the supreme court of Louisiana, calling in question the constitutionality of a statute of that state, regulating the landing, yarding, inspection and slaughter of all animals whose flesh was intended for food in

Cases, 16

33 Slaughter-House Wall. 36, 130 (21:395); Barbier v. Connolly, 113 U. S. (28:923); Powell v. Pennsylvania, 127 U. S. 683 (32:256); Mugler v. Kansas, 123 U. S. 623, 678 (31:205); Bartemeyer V. Iowa, 18 Wall. 129 (21:929); Boston Beer Co. v. Massachusetts, 97 U. S. 33 (24:992); Foster v. Kansas, 112 U. S. 206 (28:697); Butchers' Union V. Crescent City Co., 111 U. S. 746, 751 (28:585); Munn v. Illinois, 94 U. S. 113 (24:77); Louisville &

Nashville Railroad Co. v. Commonwealth of Kentucky, 161 U. S. 677, 704 (40:849); Holden v. Hardy, 169 U. S. 366, 398 (42:780); L'Hote v. New Orleans, 177 U. S. 587 (44:899); Davis v. Massachusetts, 167 U. S. 43 (42:71); Stone v. Mississippi, 101 U. S. 814, 821 (25:1079); Douglas v. Commonwealth of Kentucky, 168 U. S. 488, 505 (42:553).

34 L'Hote v. New Orleans, 177 U. S. 587, 600 (44:899).