1. An Act of the Legislature of Texas, entitled "An Act
regulating taxation," approved June 3, 1873, provides in its third
section that
"There shall be levied on and collected from every firm or
association of persons . . . pursuing the occupation of selling
spirituous, vinous, malt, and other intoxicating liquors in
quantities less than one quart, $200; in quantities of a quart and
less than ten gallons, $100; provided that this section shall not
be so construed as to include any wines or beer manufactured in
this State."
A., who was pursuing, in that state, "the occupation of selling
spirituous, vinous, malt, and other intoxicating liquors in
quantities leas than one quart," filed his petition, setting forth
that the wines and beer which he was selling were the manufacture
not of that state, but of other states and of foreign nations, and
praying that the county treasurer be enjoined from collecting the
tax imposed by said act of 1873, on the ground of its repugnance to
the Constitution of the United States.
Held that as he was
also engaged in selling other liquors, the injunction was properly
refused.
2. That act is inoperative only so far as it discriminates
against imported wines or beer. A person cannot, for selling either
of them, be subjected to a higher tax than that imposed for selling
wines or beer manufactured in the state.
A statute of Texas, entitled "An Act regulating taxation,"
approved June 3, 1873, enacts as follows:
"SEC. 3. That there shall be levied on and collected from every
person, firm, or association of persons, pursuing any of the
following named occupations an annual tax (except when herein
otherwise provided), on every such occupation or separate
establishment, as follows: for selling spirituous, vinous, malt,
and other intoxicating liquors, in quantities less than one quart,
$200; in quantities of a quart and less than ten gallons, $100,
provided that this section shall not be so construed as to
include any wines or beer manufactured in this state, or when sold
by druggists for medicinal purposes,
and provided further
that this section shall not be so construed as to authorize
druggists to sell spirituous or intoxicating liquors, except
alcohol. For selling in quantities of ten gallons and over,
$100."
"SEC. 4. That the county courts of the several counties of this
state shall have the power of levying taxes equal to the one-half
of the amount of the state tax herein levied, except as
hereinbefore provided,
and provided further that anyone
wishing to pursue any of the vocations named in this act for a less
period than
Page 102 U. S. 124
one year may do so by paying a
pro rata amount of such
occupation for the period he may desire;
provided further
that no occupation license shall issue for a less period than three
months,
and provided further that the receipt of the
proper officer shall be
prima facie evidence of the
payment of such tax."
In pursuance of the authority conferred by this statute, the
County Court of Galveston County, in March, 1876, levied a tax upon
certain parties engaged in the occupations mentioned in the third
section, equal to one-half the tax levied by the state.
Barney Tiernan and a number of others, who were the petitioners
in the court below, are engaged in the County of Galveston in the
occupation of "selling spirituous, vinous, malt, and other
intoxicating liquors," some of them in quantities less than one
quart, and others in quantities of one quart and less than ten
gallons; and the wines and beers which they sell are not of the
manufacture of the state. By the present suit against Rinker, the
treasurer of that county, they seek to enjoin the enforcement of
the tax against them, on the alleged ground that the statute is
invalid in that it discriminates in favor of wines and beer
manufactured in the state against those which are manufactured
elsewhere. The district court of the state sustained a demurrer to
their petition and dismissed the case. The supreme court of the
state affirmed the decision. The petitioners thereupon sued out
this writ of error.
Page 102 U. S. 125
Mr. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court.
The petitioners rely upon the ruling of this Court in the case
of
Welton v. State of Missouri to sustain their position.
There, the state had exacted the payment of a license tax from
traveling peddlers who dealt in the sale of goods, wares, and
merchandise which were not the growth, product, or manufacture of
the state, and required no such license tax from similar traders
selling goods which were the growth, product, or manufacture of the
state. And this Court held, following in that respect the
Page 102 U. S. 126
ruling in
Brown v. Maryland, that the tax exacted from
dealers in goods before they could be sold was in effect a tax upon
the goods themselves, and that the legislation which thus
discriminated against the products of other states in the
conditions upon which they could be sold by a certain class of
dealers was in conflict with the commercial clause of the
Constitution.
In deciding the case, the Court observed that the power
conferred by this clause to regulate commerce with foreign nations
and among the several states is without limitation; and that to
regulate commerce is to prescribe the conditions upon which it
shall be conducted; to determine how far it shall be free from
restrictions, how far it shall be subjected to duties and imposts,
and how far it shall be prohibited; that when the subject to which
the power applies is national in its character or of such a nature
as to admit of uniformity of regulation, the power is exclusive of
state authority; that the portion of commerce with foreign
countries or between the states, which consists in the
transportation and exchange of commodities, is of national
importance and admits and requires uniformity of regulation; that
the object of vesting this power in the general government was to
ensure this uniformity against discriminating state legislation;
and that to that end, this power must cover the property which is
the subject of trade from hostile or interfering legislation until
it has become a part of the general property of the country and
subject to similar protection and to no greater burdens. If, before
that time, the property can become subject to any restrictions by
state legislation, the object of vesting the control in Congress
may be defeated. If the state can exact a license tax from one
class of traders for the sale of goods which are the growth,
product, or manufacture of other states, it can exact the license
from all traders in such goods, and the amount of the tax will rest
in its discretion. "Imposts," the Court said,
"operating as an absolute exclusion of the goods, would be
possible, and all the evils of discriminating state legislation
favorable to the interests of one state and injurious to the
interests of other states and countries, which existed previous to
the adoption of the Constitution, might follow, and the experience
of the last fifteen years shows would follow, from the action of
some of the states.
Page 102 U. S. 127
The Court therefore held that the commercial power of the
federal government over a commodity continued until the commodity
had ceased to be the subject of discriminating legislation in any
state by reason of its foreign character, and that this power
protects it after it has entered the state from any burdens imposed
by reason of its foreign origin. The Court also held that the
inaction of Congress to prescribe any specific rules to govern
interstate commerce, when considered with reference to its
legislation with respect to foreign commerce, is equivalent to a
declaration that interstate commerce shall be free and untrammeled,
and that this policy would be defeated by discriminating
legislation like that of Missouri."
The doctrine of this case has never been questioned; it has been
uniformly recognized and approved, and expresses now the settled
judgment of the Court.
According to it, the statute of Texas is inoperative so far as
it makes a discrimination against wines and beer imported from
other states when sold separately from other liquors. A tax cannot
be exacted for the sale of beer and wines when a foreign
manufacture if not exacted from their sale when of home
manufacture. If a party be engaged exclusively in the sale of these
liquors, or in any business for which a tax is levied because it
embraces a sale of them, he may justly object to the discriminating
character of the act, and on that account challenge its validity,
under the decision in question, but if engaged in the sale of other
liquors than beer or wines, he cannot complain of the state tax on
that ground. The statute makes no discrimination in favor of other
liquors of home manufacture. Whilst it groups the sale of several
kinds of liquors as one occupation, it evidently intends that the
occupation which consists in the sale of any one of the several
liquors named, in the quantities mentioned, shall be subject to
taxation, as though it read, "for selling spirituous, or vinous, or
malt, or other intoxicating liquors." It does not require to
justify the tax that a party shall be engaged in the sale of all
the liquors mentioned, as well as other liquors. This being the
true construction of the act, there can be no objection to its
enforcement where the tax is levied for occupations for the sale of
other liquors than wines and beers. In the present
Page 102 U. S. 128
case, the petitioners describe themselves as engaged in the
occupation of selling spirituous, vinous, malt, and other
intoxicating liquors -- that is, in all the liquors mentioned and
others not mentioned. There is no reason why they should be
exempted from the tax when selling brandies and whiskies and other
alcoholic drinks in the quantities mentioned, because they could
not be thus taxed if their occupation was limited to the sale of
wines and beer.
We see, therefore, no error in the ruling of the Supreme Court
of Texas, and its judgment is accordingly
Affirmed.
