Constitution with reference to the power of the several states, had a similar meaning, and hence the tax levied by the city of Mobile was decided not to be repugnant to the clause of the Constitution heretofore referred to, prohibiting a state "from laying imposts or duties on imports or exports." In the course of the opinion an intimation of Mr. Chief Justice Marshall in Brown v. Maryland, that the words "imports" and "exports" might relate to the movement of goods between the states, was referred to, and it was expressly said that this was a mere suggestion on the part of the Chief Justice, not involved in the cause, and not therefore decided. So, also, the attention of the court was directed to the case of Almy v. California (1860) 24 How. 169, 16 L. ed. 644. That case involved the validity of a stamp tax imposed in California on all bills of lading for the shipment of gold from California to a point without the state. The particular bill of lading which was in question was for the shipment of gold from California to New York. It was held that this stamp tax was at least an indirect burden on exports, and hence was void, because an export tax within the meaning of the Constitution. In the opinion in Woodruff v. Parham it was expressly decided that although the conclusion in Almy v. California, that the tax was void, was sustained by the commerce clause of the Constitution, which had been referred to in the argument of that case, it had been erroneously held that "import" or "export," within the constitutional sense of the words, related to the movement of goods between the states, and not exclusively to foreign commerce. To the extent, therefore, that Almy v. California held or intimated that an export or import tax within the meaning of the Constitution embraced anything but foreign commerce, it was expressly over ruled. In Brown v. Houston, 114 U. S. 622, 29 L. ed. 257, Sup. Ct. Rep. 1091, decided in 1884, fourteen years after the decision in Woodruff v. Parham, the question which arose in the latter case was again presented. A tax levied by the state of Louisiana on certain coal which had come down the Ohio river was assailed on the ground that it amounted to both an export and import tax within the meaning of the Constitution. The court, speaking through Mr. Justice Bradley, said (p. 628, L. ed. p. 259, Sup. Ct. Rep. p. 1094): "It was decided by this court, in the case of Woodruff v. Parham, 8 Wall. 123, 19 L. ed. 382, that the term 'imports,' as used in that clause of the Constitution which declares that 'no state shall without the consent of Congress lay any imposts or duties on imports or exports,' does not refer to articles carried from one state into another, but only to articles imported from foreign countries into the United States." * The opinion, after stating the facts which were presented in Woodruff v. Parham, and the contention which was in that case based upon them, said (pp. 628, 629, L. ed. 259): "This court, however, after an elaborate examination of the question, held that the terms 'imports' and 'exports' in the clause under consideration had reference to goods brought from or carried to foreign countries alone, and not to goods transported from one state to another. It is unnecessary, therefore, to consider further the question raised by the plaintiffs in error under their third assignment of error, so far forth as it is based on the assumption that the tax complained of was an impost or duty on imports." Thus treating the meaning of the words "imports" and "exports" as having been ham, the court passed to the consideration conclusively determined by Woodruff v. Parof the contention that the tax levied in the state of Louisiana was an export tax within the meaning of the Constitution, because some of the coal was intended for export to a foreign country, or had been, as it was claimed, in part actually exported to such country. Again, in Fairbank v. United States (1900) 181 U. S. 283, 45 L. ed. 862, 21 Sup. Ct. Rep. 648, the court was called upon to determine whether the requirement in an act of Congress that a revenue stamp be affixed to every bill of lading for goods shipped to a foreign country was a tax on exports. In the course of the opinion, in considering the question, the court referred to Almy v. California, 24 How. 169, 16 L. ed. 644, as authority for the proposition that a tax on the bill of lading was a tax on the movement of the goods which the bill of lading evidenced. But in referring to the Almy Case the court was careful to say (p. 294, L. ed. p. 867, Sup. Ct. Rep. p. 650): "It is true that thereafter, in Woodruff v. Parham, 8 Wall. 123, 19 L. ed. 382, it was held that the words 'imports' and 'exports' as used in the Constitution were used to de fine the shipment of articles between this and a foreign country, and not that between the states, and while, therefore, that case what is not an export, the proposition that is no longer an authority as to what is or a stamp duty on a bill of lading is in effect a duty on the article transported remains unaffected." A consideration of the opinions in Woodruff v. Parham and Brown v. Houston, so recently in effect approved by this court in the case of Fairbank v. United States, will make it clear that an adherence to the interpretation of the words "export" and "import." which was expounded in those cases, is essential to the preservation of the nec essary powers of taxation of the several states, as well as of those of the government of the United States. And, by implication, in a number of cases decided by this court since the decision in Woodruft v. Parham, the doctrine of export and import there defined has been, if not expressly, at least tacitly, approved in many ways. Indeed, it may be safely assumed that many state statutes levying tax es and much legislation of Congress has been | The_Diamond Rings, 183 U. S. 176, ante, 59, enacted upon the express or implied recogni- 22 Sup. Ct. Rep. 59, it has just been held that tion of the settled construction of the Con- the Philippine islands immediately upon the stitution hitherto affixed to the import and ratification of the treaty ceased to be forexport clauses by this court in the cases re- eign country within the meaning of the ferred to. And this will be made obvious tariff laws; and of course, as these islands when it is considered that if the words "ex- were acquired by the same treaty by which port" and "import" as used in the Constitu- Porto Rico was acquired, this ruling is predtion be applied to the movement of goods be icated on the decisions in De Lima and tween the states, then it amounts to not only Dooley, above referred to. It is true that an express prohibition on the states to im- both in the De Lima and the Dooley cases, pose any direct, but also any indirect, bur- as well as in the case of The Diamond Rings, den, and therefore, under the doctrine of just decided, dissents were announced. None Brown v. Maryland, any state tax law of the dissents rested, however, upon the which would indirectly burden the coming theory that Porto Rico or the Philippine is of goods from one state to the other would lands had not come under the sovereignty be wholly void. So also as to the govern- and become subject to the legislative authorment of the United States, if the provision ity of the United States, but were based on as to the laying and collection of imposts the ground that legislation by Congress was be not construed as a "distinct" provision necessary to bring the territory within the relating to foreign commerce and co-related line of the tariff laws in force at the time of with the clause as to exports, it would fol- the acquisition; and especially was this the low, as was clearly pointed out in Woodruff case where the new territory had not, as the ▼. Parham, that the Constitution had result of the acquisition, been incorporated granted on the one hand a power and imme- into the United States as an integral part diately denied it. Besides, it would follow thereof, though coming under its sovereignty that all the general powers of taxation con- and subject, as a possession, to the legislaferred upon Congress would be limited by tive power of Congress. the export clause, and thus any domestic tax, although fulfiling the requirements of uniformity and not violating the prohibition against preferences which indirectly burdened the ultimate export, would be void, -a doctrine which would manifestly cause to be invalid methods of taxation exercised by Congress from the beginning without question. It being, then, beyond doubt that this court has, in a line of well-considered cases, determined that the words "export" and "import" when employed in the Constitution relate to the bringing in of goods from a country foreign to the United States and to the carrying out of goods from the United States to such a country, the only question remaining is, Is Porto Rico a country for eign to the United States? In answering this question it is manifest, from the entire reasoning of the court, in the cases in which it was decided that the terms "export" and "import" relate to a foreign country alone, that the words "foreign country," as used in those opinions, signified a country outside of the sovereignty of the United States and beyond its legislative authority, and that such meaning of those words was absolutely essential to the process of reasoning by which the conclusion in the cases referred to was reached. Is Porto Rico a country foreign to the United States in the sense that it is not within the sovereignty and not subject to the legislative authority of the United States?-is, then, the issue. In De Lima ▼. Bidwell, 182 U. S. 1, 45 L. ed. 1041, 21 Bup. Ct. Rep. 743, and Dooley v. United States, 182 U. S. 222, 45 L. ed. 1074, 21 Sup. Ct. Rep. 762, it was held that, instantly upon the ratification of the treaty with Spain, Porto Rico ceased to be a foreign country within the meaning of the tariff laws of the United States. In the case of In Downes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770, the question was whether a tax imposed by Congress on goods coming into the United States from Porto Rico was repugnant to that clause of the Constitution requiring uniformity "throughout the United States" of all "duties, imposts, and excises." The contention on the one hand was that, as Porto Rico had by the treaty with Spain been acquired by the United States, Congress could not impose a burden on goods coming from Porto Rico, in disregard of the requirement of uniformity "throughout the United States." On the other hand, it was contended that, although Porto Rico had become territory of the United States and was subject to the legislative authority of Congress, it had not been so made a part of the United States as to cause Congress to be subject, in legislating with regard to that is land, to the uniformity provision of the Constitution. The court maintained the latter view. While it is true the members of the court who agreed in this conclusion did so for different reasons, nevertheless, in all the opinions delivered by the justices who formed the majority of the court, it was declared that Porto Rico had come under the sovereignty and was subject to the legisla tive authority of the United States. Indeed, this was controverted by no one, since the members of the court who dissented did so because they deemed that Porto Rico had so entirely ceased to be foreign country, and had so completely been made a part of the United States, that Congress could not, in legislating for that island, disregard the provision of uniformity throughout the United States. It having been thus affirmatively repeatedly determined that the export and import clauses of the Constitution refer only to commerce with foreign countries, that is, "The power of Congress to tax is a very extensive power. It is given in the Constitution, with only one exception and only two qualifications. Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uniformity. Thus limited, and thus only, it reaches every subject, and may be exercised at discretion." to a country or countries without the sover-, collect taxes, duties, imposts, and exciseseignty and entirely beyond the legislative the court, in the License Tax Cases (1866) authority of the United States,-and it hav- 5 Wall. 462, 471, 18 L. ed. 497, 500, said: ing been conclusively settled that Porto Rico is not such a country, it seems to me the claim here made that the tax imposed by Congress in Porto Rico is an export or an import within the meaning of the Constitution is untenable. But, it is said, if Porto Rico is not foreign, and therefore the tax laid on goods in that island on their arrival from the United States is not within the purview of the import and the inhibition of Of course, the Constitution contemplates the export clauses of the Constitution, then freedom of commerce between the states, but Porto Rico is domestic, and the tax is void it also confers upon Congress the powers of because repugnant to the 1st clause of § 8 taxation to which I have referred, and safeof article 1 of the Constitution, conferring guarded the freedom of commerce and equalupon Congress "the power to lay and collect ity of taxation between the states by confertaxes, duties, imposts, and excises, ring upon Congress the power to regulate but all duties, imposts, and excises shall be such commerce, by providing for the apporuniform throughout the United States." tionment of direct taxes, by exacting uniThis contention, however, is but a restate-formity throughout the United States in the ment of the proposition which the court held laying of duties, imposts, and excises, and to be unsound in Downes v. Bidwell; for in by prohibiting preferences between ports of that case it was expressly decided that a different states. Indeed, when the argument provision of the statute now in question, which I am considering is properly analyzed, which imposes a tax on goods coming to the it amounts to a denial, as I have said, of the United States from Porto Rico, was valid substantial powers of Congress with regard because that island occupied such a relation to domestic taxation, and, as I understand to the United States as empowered Congress it, overthrows the settled interpretation of to exact such a tax, since the requirement the Constitution, long since announced and of uniformity throughout the United States consistently adhered to. was inapplicable. I do not propose to recapitulate the grounds of the conclusion so elaborately expressed by the opinions of the majority of the court in that case, since it suffices to say, for the purposes of the uni-senting: formity clause, that decision is controlling in this case. If the contention be that because the impost clause of the Constitution refers only to foreign commerce, therefore there was no power in Congress to impose the tax in question, or that such power is impliedly denied, the contention is un. founded and really but amounts to an indirect attack upon the doctrines announced in Woodruff v. Parham, Brown v. Houston, and Fairbank v. United States. As held in Mr. Chief Justice Fuller, with whom concurred Mr. Justice Harlan, Mr. Justice Brewer, and Mr. Justice Peckham, dis This is an action brought to recover back duties levied and collected under the Porto Rican act of April 12, 1900 (31 Stat. at L. 77, chap. 191), at San Juan, on articles shipped to that port by citizens of New York from the state of New York. Plaintiffs were chants, having their main office in the city engaged in the business of commission mer of New York and a branch office at San Juan. The 2d section of the act provides that, from the time of its passage, "the same tariffs, customs, and duties shall be levied, collected, and paid upon all articles imported into Porto Rico from ports other than those of the United States, which are required by law to be collected upon articles imported into the United States from foreign countries," with some exceptions not material here. The 3d section, by which these duties are "That on and after the Woodruff v. Parham, the impost clause and passage of this act all merchandise coming into the United States from Porto Rico and coming into Porto Rico from the United States shall be entered at the several ports of entry upon payment of fifteen per centum of the duties which are required to be levied, collected, and paid upon like articles of merchandise imported from foreign countries; and, in addition thereto, upon articles of merchandise of Porto Rican manufacture coming into the United States and withdrawn for consumption or sale, upon payment of a tax equal to the internal revenue *166 tax imposed in the United States upon the a foreign country, the prohibition of clause like articles of merchandise of domestic 5 would be fatal to these duties; while if manufacture;" and it was further provided Porto Rico became domestic, then, as they that articles of merchandise manufactured are customs duties, they could not be susin the United States coming into Porto Rico tained, according to Woodruff v. Parham, should, after entry, be subject to whatever under the 1st clause of § 8; and were also internal revenue taxes might be in force on prohibited by clause 5 of § 9, whether custhe island. And also that whenever the leg-toms duties or not, if the application of that islative assembly of Porto Rico should have enacted and put into operation a system of local taxation, and proclamation thereof had been made, "all tariff duties on merchandise and articles going into Porto Rico from the United States or coming into the United States from Porto Rico shall cease." clause is not limited to foreign commerce. The prohibition that "no tax or duty shall be laid on articles exported from any state" negatives the existence of any power in Congress to lay taxes or duties in any form on articles exported from a state, irrespective of their destination, and, this beAssuming that "the United States" as re- ing so, the act in imposing the duties in ferred to is the United States as constituted question is invalid, whether Porto Rico after at the date of the proclamation of the treaty, its passage was a foreign or reputed foreign the act, explicitly recognizing the distinc-territory, a domestic territory, or a territory tion between tariff duties and internal taxes, subject to be dealt with at the will of Conis in respect of such duties an act to raise gress regardless of constitutional limitarevenue by taxing the commerce of the peo- tions. ple of every state and territory. Confessedly the prohibition applies to foreign commerce, and the question is whether it is confined to that; in other words, whether language which embraces all articles exported can be properly restricted to particular exports. On what ground can the insertion in this comprehensive denial of power of the words "to foreign countries," thereby depriving it of effect on commerce other than foreign, be justified? The fact that the net proceeds of the duties are appropriated by the act for use in Porto Rico does not affect their character any more than if so appropriated by another and separate act. The taxation reaches the people of the states directly, and is national, and not local, even though the revenue derived therefrom is devoted to local purposes. Customs duties are duties imposed on imports or exports, and, according to the terms If the words "exported from any state" of this act, these are customs duties, not apply only to articles exported from a state levied according to the rule of uniform-to a foreign country, it would seem to fol ity, and laid on exports as well as imports. By the 1st clause of § 8 of article 1 of the Constitution, Congress is empowered to lay and collect duties, imposts, and excises, subject to the rule of uniformity, but this court has held that customs duties are only leviable on foreign commerce (Woodruff v. Par-merce from one state to another state withham, 8 Wall. 123, 19 L. ed. 382), and that the uniformity required is geographical merely (Knowlton v. Moore, 178 U. S. 41, 44 L. ed. 969, 20 Sup. Ct. Rep. 747). By the 3d clause of the same section, Congress is empowered "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The power to tax and the power to regulate commerce are distinct powers, yet the power of taxation may be so exercised as to operate in regulation of commerce. Clauses 5 and 6 of § 9 provide: "No tax or duty shall be laid on any articles exported from any state. "No preference shall be given by any regu. lation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another." These provisions were intended to prevent the application of the power to lay taxes or duties, or the power to regulate commerce, so as to discriminate between one part of the country and another. The regulation of commerce by a majority vote, and the exemption of exports from duties or taxes, were parts of one of the great compromises of the Constitution. If, after the cession, Porto Rico remained low that the broad power granted to Congress "to lay and collect taxes," for the purposes specified in the Constitution, may be exerted in the way of taxation on articles exported from one state to another. The right to carry legitimate articles of com. out interference by national or state authority was, it has always been supposed, firmly established and secured by the Constitution. But that right may be destroyed or greatly impaired if it be true that articles may be taxed by Congress by reason of their being carried from one state to another. Undoubtedly the clause confines the pow er to lay customs duties or imposts to imports only. This was so stated by Mr. Hamilton in the thirty-second number of The Federalist: "The 1st clause of the same section [§ 8] empowers Congress 'to lay and collect taxes, duties, imposts, and excises; and the 2d clause of the 10th section of the same article declares that 'no state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws.' Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned. But this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any state; in consequence of which qualification it now only extends to the duties on imports." Nevertheless, because the clause secured that object, it is not to be assumed that it 171 was not also intended to secure unrestrained intercourse between the different parts of a common country. As was said in Gibbons v. Ogden, the right of intercourse between state and state was derived "from those laws whose authority is acknowledged by civilized man throughout the world. The Constitution found it an existing right, and gave to Congress the power to regulate it." 9 Wheat. 211, 6 L. ed. 73. From this grant, however, the power to regulate by the levy of any tax or duty on articles exported from any state was expressly withheld. jects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on, for the reason that such taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to Congress." Lyng v. Michigan, 135 U. S. 166, 34 L. ed. 153, 3 Inters. Com. Rep. 146, 10 Sup. Ct. Rep. 726. But if that power of regulation is absolutely unrestricted as respects interstate commerce, then the very unity the Constitution was framed to secure can be set at naught by a legislative body created by that instrument. In Woodruff v. Parham, 8 Wall. 132, 19 L. Such a conclusion is wholly inadmissible. ed. 384, Mr. Justice Miller, in support of the The power to regulate interstate commerce conclusion that clause 1 of § 8 was confined was granted in order that trade between the as to customs duties to foreign commerce, states might be left free from discriminating said: "Is the word 'impost,' here used, in. legislation, and not to impart the power to tended to confer upon Congress a distinct create antagonistic commercial relations bepower to levy a tax upon all goods or mer-tween them. chandise carried from one state into an- The prohibition of preference of ports was other? Or is the power limited to duties on foreign imports? If the former be intended, then the power conferred is curiously rendered nugatory by the subsequent clause of the 9th section, which declares that no tax shall be laid on articles exported from any state, for no article can be imported from one state into another, which is not, at the same time, exported from the former." In that case, clause 2 of § 10 was under consideration: "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; and all such laws shall be subject to the revision and control of the Congress." coupled with the prohibition of taxation on articles exported. The citizens of each state* were declared "entitled to all privileges and immunities of citizens in the several states," and that included the right of ingress and egress, and the enjoyment of the privileges of trade and commerce. Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394. It was held that this referred to foreign commerce only, and "that no intention ex. isted to prohibit, by this clause, the right of one state to tax articles brought into it from another." This was reaffirmed in Brown v. Houston, 114 U. S. 622, 630, 29 L. ed. 257, 260, 5 Sup. Ct. Rep. 1091, 1095, and Mr. Justice Bradley said: "But in holding, with the decision in Woodruff v. Parham, that goods carried from one state to another are not imports or exports within the meaning of the clause which prohibits a state from laying any impost or duty on imports or exports, we do not mean to be understood as holding that a state may levy import or export duties on goods imported from or exported to another state. We only mean to say that the clause in question does not prohibit it. Whether the laying of such duties by a state would not violate some other provision of the Constitution-that, for example, which gives to Congress the power to regulate commerce with foreign nations, among the several states, and with the Indian tribes-is a different question." And so the court, in Woodruff v. Parham, as the quotation from its opinion by Mr. Justice Miller demonstrates, did not put upon the absolute and general prohibition of power to lay any tax or duty on articles exported from any state that narrow construc. tion which would limit it to exports to a foreign country, and would concede the power to Congress to impose duties on exports from one state to another in regulation of interstate commerce. The power to lay duties in regulation of commerce with foreign nations is relied on as the source of power to pass laws for the protection and encouragement of domestic industries, and except for this clause the same effect would be attributed to the power to regulate commerce among the states. This, however, the clause, literally read, prevents, and to limit its application to foreign commerce, as the power to lay customs duties under the 1st clause of § 8 has been limited, would defeat the manifest purpose of the Constitution by enabling discriminating taxes and duties to be laid against one section of the country as distinguished from another. And if the prohibition be not confined to foreign commerce, then it applies to all com. merce not wholly internal to the respective states, and the destination of articles exported from a state cannot affect, or be laid hold of to affect, the result. In short, clause 5 operates, and was intended to operate, to except the power to lay any tax or duty on articles exported from the general power to regulate commerce, The question has been repeatedly an- whether interstate or foreign. And this is swered by this court to the effect "that no equally true in respect of commerce with state has the right to lay a tax on interstate the territories, for the power to regulate commerce in any form, whether by way of commerce includes the power to regulate it, duties laid on the transportation of the sub-not only as between foreign countries and |