The exportation stamp required to be affixed to every package of
tobacco intended for exportation, before its removal from the
factory, again declared constitutional, and the decision in
Pace v. Burgess, 92 U. S. 372,
reaffirmed.
An excise laid on tobacco before its removal from the factory is
not a duty on "exports," or "on articles exported" within the
prohibition of the Constitution, even though the tobacco be
intended for exportation. The case of
Coe v. Errol,
116 U. S. 517,
cited and applied.
The case is stated in the opinion of the Court.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This suit was brought to recover from the internal revenue
collector of the Third District of Virginia the amount paid by the
plaintiffs, from 1869 to 1872, inclusive, for stamps affixed to
certain cases of tobacco manufactured by them and intended for
exportation. The sum paid for the stamps was twenty-five
Page 117 U. S. 505
cents each. The ground of action relied on by the plaintiffs is
that the tax was unconstitutional, being, as contended, repugnant
to that clause of the Constitution which declares that "no tax or
duty shall be laid on articles exported from any state." The stamps
were required to be affixed by the Act of July 20, 1868, 15 Stat.
157. By this act, an excise tax of 32 cents per pound was imposed
on all manufactured tobacco, except smoking tobacco, on which the
tax was 16 cents per pound. This tax was required to be paid by
purchasing stamps, to be affixed to the packages before the tobacco
was allowed to be removed from the manufactory, but tobacco
intended for exportation was relieved from the payment of this tax
by affixing to each package or box, of whatever size, before
removal from the factory, a twenty-five-cent stamp, engraved to
indicate the intent to export the same. After being thus stamped,
and giving bond according to the regulations of the Treasury
Department, such tobacco might be removed to any export bonded
warehouse at some port of entry, and there kept in bond until
actually exported. In 1872, the price of the stamp was reduced to
10 cents, and the act was incorporated in this form in section 3385
of the Revised Statutes.
We had occasion to examine the very question raised in this case
in
Pace v. Burgess, reported in
92 U. S.
372, and were unanimously of opinion that the act
requiring the exportation stamp complained of was a valid and
constitutional act. The reasons for that decision were given at
length in the report of that case, and we see no occasion to modify
the views then expressed. The finding of facts (so called) made by
the court in the present case, by consent of the parties (who
waived a jury) does not change the character of the question. Every
fact now found was assumed or virtually involved in the former
case. But since that decision, Congress has abolished all charge
for the exportation stamp, by an act passed August 8, 1882,
entitled "An act to repeal so much of section 3385 of the Revised
Statutes as imposes an export tax on tobacco." It is argued that
the language of this title is a concession by Congress that the
charge for the stamp was an export tax. This argument admits of
several answers. The act was obtained in
Page 117 U. S. 506
the interest of the tobacco manufacturers, and was probably
proposed by them or by their counsel, and the expression referred
to may have escaped the attention of the members. But if it was
intentionally used, it would only be the opinion of one Congress
opposed to that of another, for, of course, it cannot be supposed
that the Congress which passed the law regarded it as imposing a
tax on exports. Besides, an expression of opinion on the part of
Congress, however much to be respected, is not binding on us. The
counsel for the plaintiffs in this case asks us to declare the law
unconstitutional, and thereby to declare that the Congress which
passed it was mistaken in its opinion. With the action of Congress
in abolishing the charge for the stamp we have nothing to do. That
is a matter of pure legislative discretion, and has no bearing on
the question.
We are referred to certain expressions in the opinion of the
court of the Court of Appeals of Virginia in the case of
Burwell v. Burgess, 32 Gratt. 472, indicating that if it
were an original question, that court would find it difficult to
hold that the money paid for the stamps was not a tax. While
entertaining a high respect for the opinions of that eminent court,
we cannot surrender our own views on a question which it is our
peculiar duty to decide.
There is another view of this subject, however, independent of
the considerations which governed our former decision, which is
equally decisive of this case. We have lately decided, in
Coe
v. Errol, 116 U. S. 517,
that goods intended for exportation to another state are liable to
taxation as part of the general mass of property of the state of
their origin until actually started in course of transportation to
the state of their destination or delivered to a common carrier for
that purpose, provided they are taxed in the usual way in which
such property is taxed, and not taxed by reason or because of such
exportation or intended exportation, and that the carrying of them
to and depositing them at a depot for the purpose of transportation
is no part of that transportation. Now the constitutional
prohibition against taxing exports is substantially the same when
directed to the United States as when directed to a state. In
Page 117 U. S. 507
the one case, the words are: "No tax or duty shall be laid on
articles exported from any state." Article I, ยง 9, par. 5. In the
other they are: "No state shall, without the consent of Congress,
lay any imposts or duties on imports or exports." Article 1, sec.
10, par. 2. The prohibition in both cases has reference to the
imposition of duties on goods by reason or because of their
exportation, or intended exportation, or while they are being
exported. That would be laying a tax or duty on exports, or on
articles exported, within the meaning of the Constitution. But a
general tax, laid on all property alike and not levied on goods in
course of exportation nor because of their intended exportation, is
not within the constitutional prohibition. How can the officers of
the United States, or of the state, know that goods apparently part
of the general mass, and not in course of exportation, will ever be
exported? Will the mere word of the owner that they are intended
for exportation make them exports? This cannot for a moment be
contended. It would not be true, and would lead to the greatest
frauds.
It is true, as was conceded in
Coe v. Errol, that the
prohibition to the states against laying duties on imports or
exports related to imports from and exports to foreign countries;
yet the decision in that case was based on the postulate that when
such imposts or duties are laid on imports or exports from one
state to another, it amounts to a regulation of commerce among the
states, and therefore is an invasion of the exclusive power of
Congress. So that the analogy between the two cases holds good, and
what would be constitutional or unconstitutional in the one case
would be constitutional or unconstitutional in the other.
In the present case, the tax (if it was a tax) was laid upon the
goods before they had left the factory. They were not in course of
exportation; they might never be exported; whether they would be or
not would depend altogether on the will of the manufacturer. Had
the same excise which was laid upon all other tobacco manufactured
by the plaintiffs been laid on the tobacco in question, they could
not have complained. But it was not. A special indulgence was
granted to them (in
Page 117 U. S. 508
common with others) in reference to the particular tobacco which
they declared it to be their intention to export. With regard to
that, in order to identify it and to protect the government from
fraudulent practices, all that was required of the plaintiffs was
to affix a 25-cent stamp of a peculiar design to each package, no
matter how much it might contain, and enter it into bond either to
export it according to the declared intention, or to pay the
regular tax if it should not be exported. In this view of the case,
the plaintiffs not only had no ground of complaint, but they were
really the objects of favorable treatment on the part of the
government, which, on the slight and easy conditions referred to,
accepted their declared intention to export the tobacco in question
before it was commenced to be exported or put in the way of
exportation.
On both grounds, we are satisfied that the plaintiffs are
without any cause of action, and the judgment of the circuit court
is
Affirmed.