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priation or otherwise, any amount of money shall not be construed to inhibit the authorities out of the treasury of the State, to any indi of this State from respecting and enforcing such vidual, on a claim, real or pretended, where the rules and regulations as were prescribed by the same shall not have been provided for by pre said legislatures which were not in violation of existing law.

the Constitution and laws of the United States, General laws, regulating the adoption of chil. or in aid of the rebellion against the United dren. emancipation of minors, and the granting States, or prejudicial to citizens of this state who of divorces, shall be made; but no special law were loyal to the United States, and which have shall be enacted relating to particular or indi. been actually in force or observed in Texas duvidual cases.

ring the above period of time, nor to affect preThe rights of married women to their separate judicially private rights which may have grown property, real and personal, and the increase of up under such rules and regulations, nor to inthe same, shall be protected by law; and mar

validate official acts not in aid of the rebellion ried women, infants, and insane persons, shall against the United States during said period of not be barred of their rights of property by ad. time. The legislature which assembled in the verse possession or law of limitation of less than city of Austin on the 6th day of August, A. D. seven years from and after the removal of each 1866, was provisional only, and its acts are to and all of their respective legal disabilities. be respected only so far as they were not in vio

The legislature shall have power, and it shall lation of the Constitution and laws of the United be their duty, to protect by law from forced sale States, or were not intended to reward : hose who a certain portion of the property of all heads of participated in the rebellion or discriminate befamilies. The homestead of a family, not to ex-tween citizens on account of race or color, or to ceed two hundred acres of land, (not included in operate prejudicially to any class of citizens. a city, town, or village,) or any city, town, or All debts created by the so-called State of village lot or lots, not to exceed five thousand Texas from and after the 28th day of January, dollars in value at the time of their designation A. D. 1861, and prior to the 5th day of August, as a homestead, and without reference to the 1865, were and are null and void, and the legisvalue of any improvements thereon, shall not be lature is prohibited from making any provision subject to forced sales for debts, except they be for the acknowledgment or payment of such for the purchase thereof, for the taxes assessed debts. All unpaid balances, whether of salary, thereon, or for labor and materials expended per diem, or monthly allowance due to employees thereon ; nor shall the owner, if a married man, of the State, who were in the service thereof on be at liberty to alienate the same unless by the the said 28th day of January, 1861, civil or milconsent of the wife, and in such manner as may itary, and who gave their aid, countenance, or be prescribed by law.

support to the rebellion then inaugurated against All persons who at any time heretofore lived the Government of the United States, or turned together as husband and wife, and both of whom, their arms against the said Government, thereby by the law of bondage, were precluded from the forfeited the sums severally due to them. All rites of matrimony, and continued to live to the ten per cent. warrants issued for military gether until the death of one of the parties, shall services

, and exchanged during the rebellion at be considered as baving been legally inarried the treasury for non-interest warrants, are and the issue of such cohabitation shall be deemed hereby declared to have been fully paid and dislegitimate, and #ll such persons as may be now charged: Provided, That any loyal person, or his living together in such relation shall be consid- or her heirs or legal representatives, may, by ered as having been legally married, and the proper legal proceedings, to be commenced within children heretofore or hereafter born of such co-two years after the acceptance of this constituhabitations shall be deemed legitimate.

tion by the Congress of the United States, show No minister of the Gospel, or priest of any de proof in avoidance of any contract made or renomination whatever who accepts a seat in the vise or annul any decree or judgment rendered legislature as representative, shall, after such ac since the said 28th day of January, 1861, when, ceptance, be allowed to claim exemption from through fraud practiced or threats of violence military service, road duty, or serving on juries, used towards such persons, no adequate considby reason of his said profession.

eration for the contract has beea received; or The ordinance of the convention passed on when, through absence from the State of such the first day of February, A. D. 1861, commonly person, or through political prejudice against known as the ordinance of secession, was in con- such person, the decision complained of was not travention of the Constitution and laws of the fair or impartial. United States, and therefore null and void from Ah the qualified voters of each county shall the beginning; and all laws and parts of laws also be qualified jurors of such county. founded upon said ordinance were also null and Four congressional districts are established, to void from the date of their passage The legis continue till otherwise provided by law. latures which sat in the State of Texas from the The election on the adoption of the constitu18th day of March, A. D. 1861, until the 6th day tion to be held on the first Monday in July, of August, A. D. 1866, had no constitutional au 1869, at the places and under the regulations to thority to make laws binding upon the people of be prescribed by the commanding general of the the State of Texas : Provided. That this section military district.

XLV.

JUDICIAL DECISIONS, AND THE OPINION OF THE ATTORNEY

GENERAL OF THE UNITED STATES ON THE JURISDICTION OF MILITARY COMMISSIONS.

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SUPREME COURT OF THE UNITED STATES. I transported, and the payment of the tax to the

sheriff or other proper officer. On the Right of a State to Tax Passengers Pass It is claimed by counsel for the State that the ing through it.

tax thus levied is not a tax upon the passenger, No. 85, DECEMBER TERM, 1867.

but upon the business of the carrier who transWilliam H. Crandall, pl'ff in error,) In error to the su

If the act were much more skillfully drawn to preme court of

the State of Ne- sustain this hypothesis than it is, we should be The State of Nevada.

very reluctant to admit that any form of words Mr. Justice Miller delivered the opinion of the which had the effect to compel every person trav, court.

eling through the country by the common and The question for the first time presented to usual modes of public conveyance to pay a spethe court by this record is one of importance. cific sum to the State was not a tax upon the The proposition to be considered is the right of right thus exercised. The statute before as is a State to levy a tax upon persons residing in the not, however, embarrassed by any nice difficul. State who may wish to get out of it, and upon ties of this character. The language which we persons not residing in it who may have occa- have just quoted is, that there shall be levied sion to pass through it.

and collected a capitation tax upon every person It is to be regretted that such a question leaving the State by any railroad or stage-coach, should be submitted to our consideration with and the remaining provisions of the act, which neither brief nor argument on the part of plain- refer to this tax, only provide a mode of collecttiff in error. But our regret is diminished by ing it. The officers and agents of the railroad the reflection, that the principles which must companies and the proprietors of the stagegovern its determination have been the subject coaches are made responsible for this, and so of much consideration in cases heretofore de. become the collectors of the tax. cided by this court.

We shall have occasion to refer hereafter someThe plaintiff in error, who was the agent of what in detail to the opinions of the judges of a stage company engaged in carrying passenthis court in the Passenger Cases, 7 Howard, in gers through the State of Nevada, was arrested which there were wide differences on several for refusing to report the number of passengers points involved in the case before us. In the that had been carried by the coaches of

case from New York then under consideration pany, and for refusing to pay the tax of one the statute provided that the health commissioner dollar imposed on each passenger by the law of should be entitled to demand and receive from that State. He pleaded in good form that the the master of every vessel that should arrive in law of the State under which he was prosecuted the port of New York from a foreign port $1 50 was void, because it was in conflict with the for every cabin passenger and $1 for each steer. Constitution of the United States; and his plea age passenger, and from each coasting vessel being overruled, the case came into the supreme twenty-five cents for every person on board. court of the State, where it was decided against That statute does not use language so strong as the claim thus set up under the Federal Con the Nevada statute, indicative of a personal tax stitution.

on the passenger, but merely taxes the master The provisions of the statute charged to be in of the vessel according to the number of his violation of the Constitution are to be found in passengers; but the court held it to be a tax sections 90 and 91 of the revenue act of 1865, upon the passenger, and that the master was the page 271 of the statutes of Nevada for that agent of the State for its collection. Chief Jusyear. Section 90 enacts, that “there shall be tice Taney, while he differed from the majority levied and collected a capitation tax of one of the court

, and held the law to be valid, said dollar upon every person leaving the State by of the tax levied by the analogous statute of any railroad, stage-coach, or other vehicle en Massachusetts, that "its payment is the condigaged or employed in the business of transport- tion upon which the State permits the alien pasing passengers for hire;" and that the proprie. Isenger' to come on shore and mingle with its tors, owners, and corporations so engaged shall ciiizens and to reside among them. It is de

said tax of one dollar for each and every manded of the captain, and not from every sepperson so conveyed or transported from the arate passenger, for convenience of collection. State. Section 91, for the purpose of collecting But the burden evidently falls upon the passen; the tax, requires from persons engaged in such ger, and he in fact pays it, either in the enhanced business, or their agents, a report every month, price of his passage or directly

to the captain under oath, of the number of passengers sol before he is allowed to embark for the voyage.

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The nature of the transaction and the ordinary court were relied on by the judges themselves as course of business show that this must be so." deciding it in different ways. It was certainly,

Having determined that the statute of Nevada so far as those cases affected it, left an open imposes a tax upon the passenger for the privi- question.

ge of leaving the State, or passing through it In the case of Cooley vs. Board of Wardens, by the ordinary mode of passenger travel, we 12 Howard, 299, four years later, the same quesproceed to inquire if it is for that reason in con- tion came directly before the court in reference Hict with the Constitution of the United States. to the local laws of the port of Philadelphia

In the argument of the counsel for the de- concerning pilots. It was claimed that they fendant in error, and in the opinion of the su- constituted a regulation of commerce, and were preme court of Nevada, which is found in the therefore void. The court held that they did record, it is assumed that this question must be come within the meaning of the term "to regudecided by an exclusive reference to two pro late commerce," but that until Congress made visions of the Constitution, namely: that which regulations concerning pilots the States were forbids any State, without the consent of Con. competent to do so. gress, to lay any imposts or duties on imports Perhaps no more satisfactory solution has ever or exports, and that which confers on Congress been given of this vexed question than the one the power to regulale commerce with foreign furnished by the court in that case. After shownations and among the several States.

ing that there are some powers granted to ConThe question as thus narrowed is not free gress which are exclusive of similar powers in from difficulties. Can a citizen of the United the States, because they are declared to be so, States traveling from one part of the Union to and that other powers are necessarily so from another be called an export? It was insisted in their very nature, the court proceeds to say, that the Passenger Cases, to which we have already the authority to regulate commerce with foreign referred, that foreigners coming to this country nations and among the States includes within were imports within the meaning of the Con- its compass powers which can only be exercised stitution, and the provision of that instrument | by Congress, as well as powers which, from their that the migration or importation of such per. nature, can best be exercised by the State legissons as any of the States then existing should latures, to which latter class the regulation of think proper to admit should not prohibited pilots belongs. "Whatever subjects of this prior to the year 1808, but that a tax might be power are in their nature national, or admit imposed on such importation was relied on as of one uniform system or plan of regulation, showing that the word import applied to pero may justly be said to be of such a nature as to sons as well as to merchandize. It was answered require exclusive legislation by Congress." In that this latter clause had exclusive reference to the case of Gillman vs. Philadelphia, 3 Wallace, slaves, who were property as well as persons, 713, this doctrine is reaffirmed, and under it a and therefore proved nothing. While some of bridge across a stream navigable from the ocean, the judges who concurred in holding those authorized by State law, was held to be well laws to be unconstitutional gave as one of their authorized in the absence of any legislation by reasons that they were taxes on imports, it is Congress affecting the matter. evident that this view did not receive the assent It may be that under the power to regulate of a majority of the court. The application of commerce among the States, Congress bas authis provision of the Constitution to the propo- thority to pass laws, the operation of which would sition which we have stated in regard to the be inconsistent with the tax imposed by the State citizen is still less satisfactory than it would be of Nevada, but we know of no such statute now to the case of foreigners migrating to the United in existence. Inasmuch, therefore, as the tax States.

does not itself institute any regulation of comBut it is unnecessary to consider this point merce of a national character, or which has a further in the view which we have taken of the uniform operation over the whole country, it is

not easy to maintain, in view of the principles As regards the commerce clause of the Con. on which those cases were decided that it violates stitution, two propositions are advanced on be- the clause of the Federal Constitution which we balf of the defendant in error: 1. That the tax have had under review. imposed by the State on passengers is not a reg. But we do not concede that the question beulation of commerce 2. That if it can be so con. fore us is to be determined by the two clauses of sidered it is one of those powers which the the Constitution which we have been examining. States can exercise until Congress has so legis The people of these United States constitute one lated as to indicate its intention to exclude nation. They have a Government in which all State legislation on the same subject.

of them are deeply interested. This Government The proposition that the power to regulate has necessarily a capital established by law, commerce, as granted to Congress by the Consti- where its principal operations are conducted. tution, necessarily excludes the exercise by the Here sits its legislature, composed of senators States of any of the power thus granted, is one and representatives from the States and from which bas been much considered in this court, the people of the States. Here resides the Presiand the earlier discussions left the question in dent, directing through thousands of agents the much doubt. As late as the January term, 1849, execution of the laws over all this vast country. the opinions of the judges in the Passenger Cases Here is the seat of the supreme judicial power of show that the question was considered to be one the nation, to which all its citizens have a right of much importance in those cases, and was even to resort to claim justice at its hands. Here are then unsettled, though previous decisions of the the great executive departments, administering

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the offices of the mails, of the public lands, of the Bank of the United States, with authority to escollection and distribution of the public revenues, tablish branches in the different States, and to and of our foreign relations. These are all estab- issue notes for circulation. The legislature of lished and conducted under the admitted powers Maryland had levied a tax upon these circulatof the Federal Governinent. That Government ing notes, which the bank refused to pay, on has a right to call to this point any or all of its the ground that the statute was void by reason citizens to aid in its service, as members of the of its antagonism to the Federal Constitution. Congress, of the courts, of the executive depart- No particular provision of the Constitution was ments, and to fill all its other offices; and this pointed to as prohibiting the taxation by the right cannot be made to depend upon the plea State. Indeed, the authority of Congress to sure of a State, over whose territory they must create the bank, which was strenuously denied, pass to reach the point where these services must and the discussion of which constituted an imbe rendered. The Government also has its offices portant element in the opinion of the court was of secondary importance in all other parts of the not based by that opinion on any express grant country. On the seacoasts and on the rivers it of power, but was claimed to be necessary and has its ports of entry. In the interior it has its proper to enable the Government to carry out its land offices, its revenue offices, and its sub-treas- authority to raise a revenue, and to transfer and uries. In all these it demands the services of its disburse the same. It was argued also that the citizens, and is entitled to bring them to those tax on the circulation operated very remotely, if points from all quarters of the nation, and no at all, on the only functions of the bank in which power can exist in a State to obstruct this right the Government was interested. But the court, that would not enable it to defeat the purposes by a unanimous judgment, held the law of Mafor which the Government was established. ryland to be unconstitutional.

The federal power has a right to declare and It is not possible to condense the conclusive prosecute wars, and, as a necessary incident, to argument of Chief Justice Marshall in that case, raise and transport troops through and over the and it is too familiar to justify its reproduction territory of any State of the Union.

here; but an extract or two, in which the reIf this right is dependent in any sense, how- sults of his reasoning are stated, will serve to ever limited, upon the pleasure of a State, the show its applicability to the case before us. Government itself may be overthrown by an ob- "That the power of taxing the bank by the struction to its exercise. Much the largest part States," he says, "may be exercised so as to of the transportation of troops during the late destroy it is too obvious to be denied. But taxrebellion was by railroads, and largely through ation is said to be an absolute power, which acStates whose people were hostile to the Union. knowledges no other limits than those prescribed If the tax levied by Nevada on railroad passen by the Constitution, and, like sovereign power gers had been the law of Tennessee, enlarged to of any description, is trusted to the discretion meet the wishes of her people, the treasury of of those who use it. But the very terms of this the United States could not have paid the tax argument admit that the sovereignty of the necessary to enable its armies to pass through her State in the article of taxation is subordinate territory

to and may be controlled by the Constitution of But if the Government has these rights on her the United States.” Again he says: "We find own account, the citizen also has correlative then on just theory a total failure of the origirights. He has the right to come to the seat of nal right to tax the means employed by the Government to assert any claim he may have Government of the Union for the execution of upon that Government, or to transact any busi- its powers. The right never existed, and the ness he may have with it; to seek its protec- question of its surrender cannot arise. tion, to share its offices, to engage in adminis-That the power to tax involves the power tering its functions. He has a right to free to destroy: that the power to destroy may access to its sea-ports, through which all the defeat and render useless the power to create; operations of foreign trade and commerce are that there is a plain repugnance in conferring conducted, to the sub-treasuries, the land offices, on one government a power to control the the revenue offices, and the courts of justice in constitutional measures of another, which other, the several States, and this right is in its nature with respect to those very means, is declared independent of the will of any State over whose to be supreme over that which exerts the consoil he must pass in the exercise of it.

trol are propositions not to be denied. If the The views here advanced are neither novel States may tax one instrument employed by nor unsupported by authority. The question of the Government in the execution of its powers, the taxing power of the States, as its exercise has they may tax any and every other instrument. affected the functions of the Federal Government, They may tax the mail; they may tax the mint; has been repeatedly considered by this court, and they may tax patent rights; they may tax the the right of the States in this mode to impede or papers of the custom-house; they may tax juembarrass the constitutional operations of that aicial process; they may tax all the means emGovernment, or the rights which its citizens hold ployed by the Government to an excess which under it, has been uniformly denied.

would defeat all the ends of Government. This The leading case of this class is that of McCul. was not intended by the American people. They loch vs. Maryland, (4 Wheaton, 316.) The case did not design to make their Government deis one every way important, and is familiar to pendent on the States." the atesman and the constitutional lawyer. It will be observed it was not the extent The Congress, for the purpose of aiding the fiscal of the tax in that case which was complained operations of the Government, had chartered the of, but the right to levy any tax of that char

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acter. So, in the case before us, it may be said | which was itself only to be sustained as necesthat a tax of one dollar for passing through the sary and proper to the exercise of some other State of Nevada, by stage coach or by railroad, power expressly granted. cannot sensibly affect any function of the Gov In the Passenger Cases, to which reference ernment, or deprive a citizen of any valuable has already been made, Justice Grier, with right. But if the State can tax a railroad passen- whom Justice Catron concurred, makes this one ger one dollar, it can tax him one thousand dollars. of the four propositions on which they held the If one State can do this, so can every other State. tax void in those cases. Judge Wayne expresses And thus one or more States, covering the only his assent to Judge Grier's views; and perhaps practicable routes of travel from the east to the this ground received the concurrence of more of west, or from the north to the south, may to the members of the court who constituted the tally prevent or seriously burden all transpor- majority than any other. tation of passengers from one part of the country But the principles here laid down may be to the other.

found more clearly stated in the dissenting opinA case of another character, in which the tax-ion of the Chief Justice in those cases, and with ing power, as exercised by a State, was held void, more direct pertinency to the case now before us, because repugnant to the Federal Constitution, is than anywhere else. that of Brown vs. The State of Maryland, (12 After expressing his views fully in favor of Wheaton, 412)

the validity of the tax, which he said had exThe State of Maryland required all importers clusive reference to foreigners, so far as those of foreign merchandize who sold the same by cases were concerned, he proceeds to say, for the wholesale, by bale or by package, to take out a purpose of preventing misapprehension, that so license, and this act was claimed to be unconsti- far as the tax affected American citizens it could tutional. The court held it to be so on three not in his opinion be maintained. He then different grounds: first, that it was a duty on adds : "Living as we do under a common govimports; second, that it was a regulation of com- ernment, charged with the great concerns of the merce; and, third, that the importer who had paid whole Union, every citizen of the United States, the duties imposed by the United States had from the most remote States or Territories, is acquired a right to sell his goods in the same entitled to free access, not only to the principal original packages in which they were imported. departments established at Washington, but also To say nothing of the first and second grounds, to its judicial tribunals and public offices in we have in the third a tax of a State declared to every State in the Union.

For all be void because it interfered with the exercise of the great purposes for which the Federal Gova right derived by the importer from the laws ofernment was formed we are one people, with the United States. If the right of passing through one common country. We are all citizens of the a State by a citizen of the United States is one United States, and as members of the same comguarantied to him by the Constitution, it must munity must have the right to pass and repass be as sacred from State taxation as the right de through every part of it without interruption rived by the importer from the payment of duties as freely as in our own States. And a tax imto sell the goods on which the duties were paid. posed by a State for entering its territories or

In the case of Weston vs The City of Charles harbors is inconsistent with the rights which ton, (2 Peters, 447,) we have a case of State tax- belong to citizens of other States as members of ation of still another class, held to be void as an the Union, and with the objects which that interference with the rights of the Federal Gov- Union was intended to attain. Such a power in ernment. The tax in that instance was imposed the States could produce nothing but discord on bonds or stocks of the United States, in com- and mutual irritation, and they very clearly do mon with all other securities of the same character. not possess it." It was held by the court that the free and suc Although these remarks are found in a dissent. cessful operation of the Government required it ing opinion, they do not relate to the matter on at times to borrow money; that to borrow money which the dissent was founded. They accord it was necessary to issue this class of national with the inferences which we have already drawn securities, and that if the States could tax these from the Constitution itself, and from the decissecurities, they might so tax them as to seriously ions of this court in exposition of that instruimpair or totally destroy the power of the Gov- ment. ernment to borrow. This case, itself based on Those principles, as we have already stated the doctrines advanced by the court in McCul- them in this opinion, must govern the present loch vs. The State of Maryland, has been followed case. in all the recent cases involving State taxation The judgment of the Supreme Court of the of Government bonds, from that of The People State of Nevada is therefore reversed, and the of New York vs. Tax Commissioners, (2 Black, case remanded to that court, with directions to 620.) to the decisions of the court at this discharge the plaintiff in error froin custody. term.

Mr. Justice Clifford: I agree that the State In all these cases the opponents of the taxes law in question is unconstitutional and void, levied by the States were able to place their but I am not able to concur in the principal opposition on no express provision of the Con- reasons assigned in the opinion of the court in stitution, except in that of Brown vs. Maryland. support of that conclusion. But in all the other cases, and in that case also, On the contrary, I hold that the act of the the court distinctly placed the invalidity of the State legislature is inconsistent with the power State taxes on the ground that they interfered conferred upon Congress to regulate commerce with an authority of the Federal Government, among the several States, and I think the judg.

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