(1) NO IMPOSTS OR DUTIES TO BE LAID BY THE STATES ON IMPORTS OR EXPORTS EXCEPT FOR EXECUTING INSPECTION LAWS. § 352. The states prohibited from taxing imports and exports-Exception.-Correlated to those provisions of the constitution which give the federal government power to regulate commerce, and to lay and collect duties and imposts, is the provision which declares 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." 36 This provision is a necessary part of the constitutional scheme vesting the power to regulate commerce in the general government; and it was early held that a state law imposing a tax upon imports is not only repugnant to the above mentioned provision, but is also repugnant to the provision giving congress the power to regulate commerce.37 § 353. Imports and exports defined. Within the meaning of the constitution, "imports" are articles of commerce, property or merchandise imported into the United States from a foreign country, and "exports" are articles of commerce, property or merchandise exported from the United States to a foreign country. 38 § 354. Impost defined.-"Impost," within the meaning of the constitutional prohibition is a duty, custom or tax levied on articles brought into the United States from a foreign country, or which are exported from this to a foreign country.39 § 355. The inhibition does not apply to interstate shipments. The constitutional inhibition against the laying of duties on imports and exports has no application to commerce between the states; it does not apply to articles of commerce, property, or merchandise brought into one state from another state. Imports, in the constitutional sense, embrace only those goods brought from a foreign country, and do not include merchandise shipped from one state to another; and the several states, 2. 36 U. S. Const. art. I, sec. 10, cl. 37 Brown v. Maryland, 12 Wheat. 419 (6:678); Woodruff v. Parham, 8 Wall. 123 (19:382). 38 Brown v. Maryland, 12 Wheat. 419 (6:678); Woodruff v. Parham, 8 Wall. 123 (19:382); Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 345 (43:191); Brown v. Houston, 114 U. S. (29:257); American Steel & Wire Co. v. Speed, 192 U. S. 500 (48:538). 39 Brown v. Maryland, 12 Wheat. 419 (6:678); Woodruff v. Parham, 8 Wall. 123 (19:382). not being controlled as to such merchandise by the prohibition against the taxation of imports, have the power, when the merchandise, so shipped from one state to another, has reached its destination and is held for sale or use, to tax it, without discrimination, like other property situated within the state is taxed. This is the settled doctrine upon the subject, and has been for years the basis of the taxing power in all the states of the Union.40 § 356. Right of the importer to sell in the original packages without taxation by the state. As long as imports remain the property of the importer, and he has not acted upon them in such manner as to destroy their distinctive character as such, the state cannot tax them either directly or indirectly. A tax upon the sale of the imported article or the occupation of the importer is, within the meaning of the constitution, a tax upon the imported article itself." Under the revenue system of this country, the importer who has paid the duties imposed upon his imports by the general government, has the right to sell his imports in the original form or package in which they were imported, free from any burden or tax imposed by the state; but when the importer has sold the imported articles, or has broken the original package-box, case or bale-or has otherwise so acted upon them as to cause them to become incorporated or mixed with the general mass of property in the state, the goods at once lose their distinctive character as imports, and become from that time subject to state taxation.12 § 357. Same-Brown vs. Maryland. This great and leading case, it is declared by the supreme court in a late case, established the following propositions: "1. That the payment of duties to the United States gives the right to sell the thing imported, and that such right to sell cannot be forbidden or impaired by a state. "2. That a tax upon the thing imported during the time it retains its character as an import and remains the property of 40 Woodruff v. Parham, 8 Wall. 123 (19:382); Brown v. Houston, 114 U. S. 622 (29:257); American Steel & Wire Co. v. Speed, 192 U. S. 500 (48:538). 41 Brown v. Maryland, 12 Wheat. 419 (6:678); Cook v. Pennsylvania, 97 U. S. 566 (24:1015); War ring v. Mayor of Mobile, 8 Wall. 110 (19:342); May & Co. v. New Orleans, 178 U. S. 496 (44:1165). 42 Brown v. Maryland, 12 Wheat. 419 (6:678); Cook v. Pennsylvania, 97 U. S. 566 (24:1015); May & Co. v. New Orleans, 178 U. S. 496 (44:1165). the importer, 'in his warehouse, in the original form or package in which it was imported,' is a duty on imports within the meaning of the constitution; and "3. That a state cannot, in the form of a license or otherwise, tax the right of the importer to sell, but when the importer has so acted upon the goods imported that they have become incorporated or mixed with the general mass of property in the state, such goods have then lost their distinctive character as imports, and have become from that time subject to state taxation, not because they are the products of other countries, but because they are property within the state in like condi-tion with other property that should contribute, in the way of taxation, to the support of the government which protects the owner in his person and estate. 43 358.-Same-What is the "original package?"-In legal contemplation, and in the sense of the judicial decisions on the subject, "the original package" is not the original wrapper put around each separate parcel or bundle of goods at the factory, but is the box, case, or bale, in which each separate parcel or bundle of goods is placed by the foreign seller, manufacturer or packer, for shipment, and in which the goods imported are shipped; and the moment when the box, case, or bale reaches its destination for use or trade, and is opened for the sale or delivery of the separate parcels contained in it, each parcel of the goods loses its distinctive character as an import. and becomes property subject to taxation by the state as other like property situated within its limits." 44 § 359. Tax on sales of imports made by auctioneer.-A tax laid by a state on the amount of sales made by an auctioneer, is a tax on the goods sold; and where the goods sold, for which the auctioneer is required to collect and pay a tax, are imported goods in the original package, sold by him for the importer, the law of the state which authorizes the tax is void, because repugnant to the constitutional provision inhibiting the states from taxing imports and exports, and also repugnant to the constitutional provision vesting congress with the power to regulate commerce,45 43 May & Co. v. New Orleans, 178 U. S. 496 (44:1165). 44 May & Co. v. New Orleans, 178 U. S. 496 (44:1165). 45 Cook v. Pennsylvania, 97 U. S. 566, 575 (24:1015). In the case here cited, Miller, Justice, delivering the opinion of § 360. Effect of a sale of imported articles.-Whilst importers selling the imported articles in the original packages are protected against state taxation, yet this privilege of exemption is not extended to the purchaser, for the reason that im the court, said: "The congress of the United States is granted the power to regulate commerce with foreign nations in precisely the same language as it is that among the states. If a tax assessed by a state injuriously discriminating against the products of a state of the union is forbidden by the constitution a similar tax against goods imported from a foreign state is equally forbidden. "A careful reader of the history of the times which immediately preceded the assembling of the convention that framed the American constitution, cannot fail to discover that the need of some equitable and just regulation of commerce was among the most influential causes which led to its meeting. States having fine harbors imposed unlimited taxes on all goods reaching the continent through their ports. The ports of New York and Boston were far behind Newport, in the state of Rhode Island, in the value of their imports; and that small state was paying all the expenses of her government by the duties levied on the goods landed at her principal port. And so reluctant was she to give up this advantage, that she refused for nearly three years after the other twelve original states bad ratified the constitution, to give it her assent. "In granting to congress the right to regulate commerce with foreign nations and among the several states, and with the Indian tribes, and in forbidding the states without the consent of that body to levy any tax on imports, the framers of the constitution believed that they had sufficiently guarded against the dangers of any taxation by the states which would interfere with the freest interchange of commodities among the people of the different States, and by the people of the states with citizens and subjects of foreign governments. "The numerous cases in which this court has been called on to declare void statutes of the states which in various ways have sought to violate this salutary restriction, show the necessity and value of the constitutional provision. If certain states could exercise the unlimited power of taxing all the merchandise which passes from the port of New York through those states to the consumers in the great west, or could tax, as has been done until recently, every person who sought the seaboard through the railroads within their jurisdiction, the constitution would have failed to effect one of the most important purposes for which it was adopted. "A striking instance of the evil and its cure is to be seen in the recent history of the states now composing the German Empire. A few years ago they were independent states, which, though lying contiguous, speaking a common language, and belonging to a common race, were yet without a common government. "The number and variety of ported merchandise, by a sale and delivery, loses its distinctive character as an import, and becomes incorporated with the mass of property in the state, and subject to local taxation.46 § 361. Duty on exports defined.-A duty on exports must either be a duty levied on goods as a condition, or by reason of their exportation, or, at least, a direct tax or duty on goods which are intended for exportation; and where a general tax is laid on all property alike, it cannot be construed as a duty on exports when falling upon goods not then intended for exportation, though they should happen to be exported afterwards.47 § 362. Cost of executing inspection laws-Exception to inhibition. There is but one exception to the constitutional in their systems of taxation and lines of territorial division necessitating customs officials at every step the traveler took or merchandise was transported, became so intolerable, that a commercial, though not a political union was organized, called the German Zollverein. The great value of this became so apparent, and the community of interest so strongly felt in regard to commerce and traffic, that the first appropriate occasion was used by these numerous principalities to organize the common political government now known as the German Empire. "While there is, perhaps, no special obligation on this court to defend the wisdom of the constitution of the United States, there is the duty to ascertain the purpose of its provisions, and to give them full effect when called on by a proper case to do so." 46 Waring v. Mayor of Mobile, 8 Wall. 110, 123 (19:342). In the case here cited, the court, speaking through Clifford, Justice, said: "Sales by the importer are held to be exempt from state taxation because the importer purchases, by the payment of a duty, a right to dispose of the merchandise as well as to bring it into the country, and because the tax, if it were held to be valid, would intercept the import, as an import, in the way to become incorporated with the general mass of property, and would deny it the priv ilege of becoming so incorporated until it should have contributed to the revenue of the state. . . . "Where the importer sells the imported articles, or otherwise mixes them with the general property of the state by breaking up the packages, the state of things changes, as was said by this court in the leading case, as the tax then finds the articles already incorporated with the mass of property by the act of the importer. "Importers selling the imported articles in the original packages are shielded from any such state tax, but the privilege of exemption is not extended to the purchaser, as the merchandise, by the sale and delivery, loses its distinctive character as an import." 47 Brown v. Houston, 114 U. S. 622, 635 (29:257). |