The prohibition in the Constitution against taxes or duties on
exports attaches to exports as such, and does not relieve articles
manufactured for export from the prior ordinary burdens of taxation
which rest upon all property similarly situated.
In construing a statute, the title is referred to only in cases
of doubt and ambiguity, and where doubt exists as to the meaning of
a statute in regard to a privilege claimed from the government
thereunder, it should be resolved in favor of the government.
The fact that a quantity of "filled cheese" was manufactured
expressly for export does not exempt it from the tax imposed by the
Act of June 6, 1896, 29 Stat. 253, and the reference in that act to
the provisions of existing laws governing the engraving, issue,
etc., of stamps relating to tobacco and snuff, and making them
applicable to stamps used for taxes on filled cheese as far as
possible, does not relate to stamps issued without cost for tobacco
and snuff manufactured for export.
On June 6, 1896, Congress passed an act, 29 Stat. 253, entitled
"An Act Defining Cheese, and Also Imposing a Tax Upon and
Regulating the Manufacture, Sale, Importation and Exportation of
Filled Cheese.'" Section 2 defines "filled cheese." Section 3
directs that "manufacturers of filled cheese shall pay four hundred
dollars for each and every factory, per annum." Section 6 provides
for the stamping and branding of the wooden packages in which
manufacturers are required to pack filled cheese, and that
"all sales or consignments made by manufacturers of filled
cheese to wholesale dealers in filled cheese
Page 192 U. S. 419
or to exporters of filled cheese shall be in original stamped
packages."
Sections 9 and 11 are as follows:
"SEC. 9. That, upon all filled cheese which shall be
manufactured, there shall be assessed and collected a tax of one
cent per pound, to be paid by the manufacturer thereof, and any
fractional part of a pound in a package shall be taxed as a pound.
The tax levied by this section shall be represented by coupon
stamps, and the provisions of existing laws governing the
engraving, issue, sale, accountability, effacement, and destruction
of stamps relating to tobacco and snuff, as far as applicable, are
hereby made to apply to stamps provided for by this section."
"SEC. 11. That all filled cheese as herein defined imported from
foreign countries shall, in addition to any import duty imposed on
the same, pay an internal revenue tax of eight cents per pound,
such tax to be represented by coupon stamps, and such imported
filled cheese and the packages containing the same shall be
stamped, marked, and branded, as in the case of filled cheese
manufactured in the United States."
Plaintiffs in error were manufacturers of filled cheese, entered
into contracts for its manufacture and export, and under such
contracts manufactured and exported 1,580,479 pounds of filled
cheese. They were required by the defendant in error, as collector,
to purchase and affix stamps to the exported packages of filled
cheese. They protested against such required purchase, and applied
to the Commissioner of Internal Revenue, as authorized by section
3226, Rev.Stat., for a return of the various sums so paid, but
their application was rejected. Thereupon they commenced this
action in the Circuit Court of the United States for the Northern
District of Illinois. In the declaration, they alleged
"that the requirements of the said defendant, whereby the
plaintiffs were compelled in the manner aforesaid, to purchase and
use the said revenue stamps, were wholly unauthorized and
unwarranted by law, and that section 9, of the act of Congress
aforesaid, and said act itself in that the same failed to contain
provisions whereby filled cheese
Page 192 U. S. 420
manufactured for export trade and exported and sold in foreign
markets wholly without the United States might be exported and sold
free from the levy of any duty or tax thereon; or provision whereby
the same might be freed from the force and effect of said act, are
repugnant to said Section 9, Article I, of the Constitution of the
United States, and that this suit therefore involves the
construction or application of the Constitution of the United
States."
A demurrer to the declaration was sustained. They elected to
stand by the declaration. Judgment was entered in favor of the
defendant, and thereupon this writ of error was sued out.
Page 192 U. S. 426
MR. JUSTICE BREWER delivered the opinion of the Court.
The contention is that, inasmuch as this filled cheese was
manufactured under contract for export, and was in fact exported,
the tax of one cent per pound prescribed by section 9 was
prohibited by the fifth paragraph of Section 9, Article I, of the
Constitution, which reads: "No tax or duty shall be laid on any
articles exported from any state."
But this means that no burden shall be placed on exportation,
and does not require that any bounty be given therefor. Congress
has power to encourage exportation by remitting taxes on goods
manufactured at home as it has power to encourage manufacturers by
duties on imports, yet the Constitution does not compel it to do
either the one or the other. This power of encouraging is
illustrated by section 11 of this act, which requires all imported
filled cheese to pay, in addition to import duties, an internal
revenue tax of eight cents a pound -- eight times as much as that
manufactured at home. To remit on articles exported the tax which
is cast upon other like articles consumed at home, while perhaps
not technically a bounty on exportation, has some of the elements
thereof. By this act, all filled cheese is subject to a
manufacturing tax of one cent a pound. To remit that tax in favor
of filled cheese exported may encourage the manufacturer to seek a
foreign, rather than
Page 192 U. S. 427
a home market, but if the full tax on all filled cheese
manufactured is required for the support of the government, the
remission of part necessitates revenue from some other source.
Doubtless the remission is given in hope of widening the market and
increasing the production, but that is only a possibility of the
future, while the loss in the revenue is a fact of the present.
Subjecting filled cheese manufactured for the purpose of export to
the same tax as all other filled cheese is casting no tax or duty
on articles exported, but is only a tax or duty on the
manufacturing of articles in order to prepare them for export.
While that which is asked in this case is the return of a
manufacturing tax, there is nothing in the constitutional provision
to distinguish between manufacturing and other taxes, and if the
plaintiff's contention be sustained as to a manufacturing tax, it
would follow that the government was bound to refund all prior
taxes imposed on articles exported. A farmer may raise cattle with
the purpose of exportation, and in fact export them. Can it be that
he is entitled to a return of all property taxes which have been
cast upon those cattle? The true construction of the constitutional
provision is that no burden by way of tax or duty can be cast upon
the exportation of articles, and does not mean that articles
exported are relieved from the prior ordinary burdens of taxation
which rest upon all property similarly situated. The exemption
attaches to the export, and not to the article before its
exportation. Such has been the ruling of this Court. In
Turpin
v. Burgess, 117 U. S. 504,
117 U. S. 506,
where the question was as to an export stamp tax on tobacco, Mr.
Justice Bradley, speaking for the Court, said:
"The constitutional prohibition against taxing exports is
substantially the same when directed to the United States as when
directed to a state. In the one case, the words are, 'No tax or
duty shall be laid on articles exported from any state.' Art. I,
Section 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.' Art. I, Section 10, par. 2. The prohibition
Page 192 U. S. 428
in both cases has reference to the imposition of duties on goods
by reason or because of their exportation or intended exportation,
or whilst 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."
See also Brown v. Houston, 114 U.
S. 622;
Coe v. Errol, 116 U.
S. 517.
Justice Miller, in his lectures on the Constitution (p. 592),
says:
"The Congress of the United States, during the late Civil war,
imposed a tax upon cotton and tobacco, which tax was not limited to
those products when in the process of transportation, but was
assessed on all the cotton and tobacco in the country. It was
argued that, because the larger part of these products was exported
out of the country and sold to foreign nations, and because their
production was limited to a particular part of the country, the tax
was forbidden by the corresponding clause of the Constitution
prohibiting Congress from levying a tax on exports. Although the
question came at that time to the Supreme Court of the United
States, it was not then decided, because of a division of opinion
in that Court. The recent cases, however, of
Coe v. Errol,
116 U. S.
517, and
Turpin v. Burgess, 117 U. S.
504, seem to decide that the objection was not valid,
and hold that only such property as is in the actual process of
exportation, and which has begun its voyage or its preparation for
the voyage, can be said to be an export."
Some light is thrown on this question by the cases of
Kidd
v. Pearson, 128 U. S. 1, and
United States v. E. C. Knight Company, 156 U. S.
1. In the former, a manufacturer of intoxicating liquors
in Iowa claimed to be beyond the reach of the prohibitory law of
the state on the ground that he manufactured only for shipment to
other states, and therefore, as Congress had
Page 192 U. S. 429
exclusive control over interstate commerce, it had like control
over the manufacture for interstate commerce. But this Court, in an
elaborate opinion by Mr. Justice Lamar, unanimously held against
the contention, and decided that commerce did not commence until
manufacture was finished, and that therefore the state was not
prevented from exercising exclusive control over the manufacture.
In the latter case, the question was whether a monopoly of the
business of manufacturing sugar within a state was a restraint of
interstate commerce, and therefore within the purview of the act of
Congress to protect trade and commerce against unlawful restraints
and monopolies, 26 Stat. 209, and it was held that it did not, MR.
CHIEF JUSTICE FULLER announcing the opinion of the Court, saying
(pp.
156 U. S. 12 and
13):
"Commerce succeeds to manufacture, and is not a part of it. . .
. The fact that an article is manufactured for export to another
state does not of itself make it an article of interstate commerce,
and the intent of the manufacturer does not determine the time when
the article or product passes from the control of the state and
belongs to commerce."
There is nothing in the case of
Fairbank v. United
States, 181 U. S. 283,
inconsistent with these views. There, the question was as to the
validity of a stamp tax on a foreign bill of lading, and it was
held that it was a tax directly on the exportation. As said in the
opinion with reference to the constitutional provision (p.
181 U. S.
292): "The purpose of the restriction is that
exportation, all exportation, shall be free from national burden."
It is unnecessary to refer to the earlier legislation of Congress,
which, as shown by counsel for the government in his brief, has
been in harmony with this construction. From what we have said, it
is clear that there is no constitutional objection to the
imposition of the same manufacturing tax on filled cheese
manufactured for export and, in fact exported, as upon other filled
cheese.
Although the only charge in the declaration and the only matter
complained of in the assignments of error is the
unconstitutionality
Page 192 U. S. 430
of the act, and especially of section 9 thereof, in failing to
contain provisions for the exportation of filled cheese free from
the levy of any tax or duty, counsel have in this Court made a
further contention that, if the act be constitutional, it is
because, properly construed, it does provide for exportation free
from tax or duty. The argument is that the title of the act names
as one of its purposes to regulate "exportation;" that, while in
the act there is no express provision for exportation, section 9,
in reciting that
"the provisions of existing laws governing the engraving, issue,
sale, accountability, effacement, and destruction of stamps
relating to tobacco and snuff, as far as applicable, are hereby
made to apply to stamps provided for by this section,"
is to be construed as incorporating all provisions respecting
stamps "relating to tobacco and snuff," including those for stamps
on exports, which are issued free of charge.
Assuming, without deciding, that we may rightfully reverse the
judgment of the circuit court for a failure to consider a question
which was not presented, and that we may treat the declaration as
amended so as to present this question, we are of opinion that the
contention as to the construction of the act cannot be sustained.
The title of an act is referred to only in cases of doubt or
ambiguity.
"The title is no part of an act, and cannot enlarge or confer
powers, or control the words of the act unless they are doubtful or
ambiguous.
United States v. Fisher, 2
Cranch 358,
6 U. S. 386;
Yazoo &
Mississippi v. Thomas, 132 U. S. 174,
132 U. S.
188. The ambiguity must be in the context, and not in
the title, to render the latter of any avail."
United States v. Oregon &c. Railroad, 164 U.
S. 526,
164 U. S. 541.
See also Price v. Forrest, 173 U.
S. 410,
173 U. S. 427,
and cases cited.
There is no doubt or ambiguity in the act. Section 9 explicitly
declares
"that upon all filled cheese which shall be manufactured there
shall be assessed and collected a tax of one cent per pound, to be
paid by the manufacturer thereof."
And, while the section contains a reference to existing laws
Page 192 U. S. 431
governing the engraving, issue, etc., of stamps relating to
tobacco and snuff, that clause is a part of the sentence which
provides that the tax levied by this section shall be represented
by coupon stamps, and the existing laws governing the engraving,
issue, etc., of stamps are in terms "hereby made to apply to stamps
provided for by this section" as far as applicable. In other words,
the provisions of existing laws concerning the engraving, issue,
etc., of stamps are made applicable only to stamps representing
taxes. There is neither directly nor indirectly any reference to
stamps issued without cost to cover an exportation free from tax or
duty. While in section 3 there is special reference by number to
various sections of the Revised Statutes concerning special taxes,
and they are made to extend so far as applicable to the taxes
authorized by this act, there is nowhere any mention of section
3385, Rev.Stat., which provides for relieving exported manufactured
tobacco and snuff from the manufacturing tax. Further, in section 6
it is directed that all sales to exporters of filled cheese shall
be in original stamped packages, and this direction is in the same
sentence with that providing for sales to wholesale dealers.
Clearly there is nothing in the body of the act exempting exported
filled cheese from the ordinary manufacturing tax on other filled
cheese. But if there were a doubt as to the meaning of the statute,
that doubt should be resolved in favor of the government. Whoever
claims a privilege from the government should point to a statute
which clearly indicates the purpose to grant the privilege.
"But if there be any doubt as to the proper construction of this
statute (and we think there is none), then that construction must
be adopted which is most advantageous to the interests of the
government. The statute, being a grant of a privilege, must be
construed most strongly in favor of the grantor.
Gildart v.
Gladstone, 12 East 668, 675;
Charles River Bridge v.
Warren Bridge, 11 Pet. 420,
36 U. S.
544;
Dubuque & Pacific Railroad v.
Litchfield, 23 How. 66;
Binghamton
Bridge, 3 Wall. 51,
70 U. S.
75;
Rice v. Railroad Co., 1
Black 358,
66 U. S. 380;
Leavenworth,
Page 192 U. S. 432
Lawrence & Galveston Railroad v. United States,
92 U. S.
733;
Fertilizing Co. v. Hyde Park, 97 U. S.
659."
Hannibal &c. Railroad Co. v. Packet Co.,
125 U. S. 260,
125 U. S.
271.
Why Congress should grant an exemption from manufacturing tax in
the case of exported tobacco and not in the case of exported filled
cheese is not for us to determine. Doubtless the reasons which
prompted such difference were satisfactory. It is enough that no
exemption has been made in favor of the latter.
The judgment of the Circuit Court was right, and it is
Affirmed.
MR. JUSTICE BROWN did not hear the argument, and took no part in
the decision of this case.
MR. JUSTICE HARLAN, dissenting:
As this case went off upon demurrer by the government to the
declaration, its material allegations must be taken as true. The
case cannot properly be dealt with upon any other basis.
The declaration shows that the plaintiffs in error, who were
plaintiffs below, were engaged in the business of manufacturing
what is known in commercial circles as filled cheese, and that, in
execution of certain contracts made with foreign customers, the
plaintiffs manufactured large quantities of filled cheese, and
shipped it by installments directly from their factory in Illinois
to Liverpool and London. It alleged that
"each quantity or installment of filled cheese manufactured,
exported, and delivered by the plaintiffs under said contracts was
forwarded by the plaintiffs
as soon as the same was ready for
shipment from their factory in said district, and
prior to
the shipment thereof, the plaintiffs applied to the defendant
as such collector for permission to ship and forward the same
without purchasing, and attaching to said filled cheese or to the
said packages containing the said filled cheese the revenue stamps
required by an alleged
Page 192 U. S. 433
act of Congress, approved June 6, A.D. 1896, with reference to
internal revenues; but notwithstanding the fact that such filled
cheese
was manufactured for export, and was about to be
delivered by the plaintiffs for export and shipment to a foreign
market, . . . the defendant did at various times during said
period, and on the dates of shipment of said filled cheese, by
force, duress, exact,"
etc.
Upon the occasion of each of the shipments, the internal revenue
collector exacted and collected (against the protest of the
plaintiffs) a tax upon the cheese of one cent per pound, the
collector insisting that such a tax was imposed by the act of
Congress of June 6, 1896, entitled "An Act Defining Cheese, and
Also Imposing a Tax Upon and Regulating the Manufacture, Sale,
Importation and Exportation of Filled Cheese." 29 Stat. 253, c.
337.
The first question to be considered is whether Congress intended
by that act to impose a tax of one cent per pound upon filled
cheese manufactured for exportation, and which, it is admitted, was
in fact exported immediately after being so manufactured. Such is
the case before the Court for consideration.
The ninth section of the act of 1896, under which the collection
proceeded, provides that,
"upon all filled cheese which shall be manufactured there shall
be assessed and collected a tax of one cent per pound, to be paid
by the manufacturer thereof, and any fractional part of a pound in
a package shall be taxed as a pound. The tax levied by this section
shall be represented by coupon stamps, and the provisions of
existing laws governing the engraving,
issue, sale,
accountability, effacement, and destruction of stamps relating to
tobacco and snuff, as far as applicable, are hereby made to apply
to stamps provided for by this section."
ยง 9.
Observe that the section refers to "existing laws" relating,
among other things, to the
issue and
sale of
stamps for tobacco and snuff. That reference, I submit, embraced
section 3385 of the Revised Statutes, Title, Internal Revenue,
which provides:
Page 192 U. S. 434
"Manufactured tobacco, snuff, and cigars
intended for
immediate exportation may, after being properly inspected and
branded, be removed from the manufactory in bond
without having
affixed thereto the stamps indicating the payment of the tax
thereon. The removal of such tobacco, snuff, and cigars from
the manufactory shall be made under such regulations, and after
making such entries, and executing and filing with the collector of
the district from which the removal is to be made such bonds and
bills of lading, and giving such other additional security, as may
be prescribed by the Commissioner of Internal Revenue and approved
by the Secretary of the Treasury. There shall be affixed to each
package of tobacco, snuff, and cigars
intended for immediate
export, before it is removed from the manufactory,
an
engraved stamp indicative of such intention. Such stamp shall
be provided and furnished to the several collectors as in the case
of other stamps, and they shall account for the use of the same.
When the manufacturer has made the proper entries, filed the bonds,
and otherwise complied with the requirements of law and regulations
as herein provided, the collector shall issue to him a permit for
the removal, accurately describing the tobacco, snuff, and cigars
to be shipped, the number and kind of packages, the number of
pounds, the amount of tax, the marks and brands, the state and
collection district from which the same are shipped, the number of
the manufactory and the manufacturer's name,
the port from
which the said tobacco, snuff, and cigars are
to be
exported, the route or routes over which the same are to be
sent to the port of shipment, and the name of the vessel or line by
which they are to be conveyed
to the foreign port. The
bonds required to be given for the
exportation of the
tobacco, snuff, and cigars shall be cancelled upon the presentation
of the proper certificates that said tobacco, snuff, and cigars
have been landed
at any port without
Page 192 U. S. 435
the jurisdiction of the United States, or upon satisfactory
proof that, after shipment the same were lost at sea."
It requires no argument to prove that, under that section,
manufactured tobacco and snuff "intended for immediate exportation"
could be exported without payment of any tax and without having
affixed thereto any stamp other than "an engraved stamp indicative
of such intention." The effect of the reference in the last clause
of the ninth section of the act of 1896, to "existing laws
governing the engraving, issue, sale, accountability, effacement,
and destruction of stamps relating to tobacco and snuff" was, I
think, to incorporate into that act section 3385 of the Revised
Statutes, so far as it could be made applicable to filled cheese,
and to allow filled cheese
intended for immediate
exportation to be removed from the manufactory without payment
of any tax, having affixed to it no other stamp than one engraved
and indicating the intention to export. In that view,
which seems to me incontestable, the purpose of Congress was to put
manufactured filled cheese intended for immediate exportation upon
the same footing as manufactured tobacco and snuff intended for
immediate exportation, and to permit its exportation without
payment of any tax. Certainly section 3385 was one of the existing
laws at the date of the passage of the act of 1896, and if applied
to that act the result, I submit, must be as just stated. This
question is within such narrow compass that it cannot be elucidated
by extended discussion, and if the bare reading of the above
statutes, all together, does not bring the mind to the conclusion
indicated by me, argument to that end would be unavailing.
So I leave that question and come to the proposition that, if
the act of 1896 is to be construed as imposing a tax upon the
plaintiff's cheese when about to be exported, then it is in
conflict with the Constitution.
The eighth section of Article II of the Constitution enumerates
certain powers which Congress may exercise, while the ninth section
specifies certain things that Congress may not
Page 192 U. S. 436
do. The express words of that instrument are that "no tax or
duty shall be laid on articles exported from any state."
Manifestly, so far as any prohibitory action by Congress is
concerned, the object of that provision was to open the markets of
the world to the products and manufactures of the several states,
freed from any tax or burden whatever imposed by the United States.
This Court said in
Fairbank v. United States, 181 U.
S. 283,
181 U. S. 292,
that the "purpose of the restriction [on the power of Congress] is
that exportation, all exportation, shall be free from national
burden."
I do not contend that the owner of an article about to be
exported could rightfully ship it to a foreign country without
paying such tax as had legally attached in favor of the government
prior to the date on which the owner formed the purpose to
export. An existing property tax upon a manufactured article
which had become a part of the general mass of property and was
held in the possession of the owner for purposes of sale or use in
this country could not be defeated by reason of the fact that the
owner --
subsequent to manufacture and after a substantial
interval of time -- formed the intention to export it. But
that is not this case, although the Court seems to treat it as if
it were one of that kind. The government admitted by its demurrer
to the declaration that the filled cheese in question was
manufactured for exportation; that, upon the completion of the
manufacture the plaintiff, as soon as it was ready for shipment
from their factory, set about to export it, and that it was ready
to be delivered for such exportation when the collector took the
position that, before it could be removed from his district and
exported, the tax of one cent per pound, imposed by the ninth
section of the act of 1896 "upon all filled cheese which shall be
manufactured," must be paid. It is in effect admitted of record
that the plaintiffs never had any other purpose than to export the
cheese, as soon as manufactured, in fulfillment of contracts
previously made with foreign customers, and that they promptly
prepared it for exportation. There was no appreciable interval of
time between
Page 192 U. S. 437
the commencement of manufacture and the preparation for
exportation, when it could be reasonably said that the cheese had
become a part of the general mass of property in the locality of
its manufacture for purposes of sale, delivery, or consumption in
this country. So that the question arises whether it is consistent
with the constitutional injunction "no tax or duty shall be laid on
articles exported from any state" that,
at the instant
when an article admittedly manufactured for exportation is being
prepared in good faith for exportation, not for sale or consumption
here, a national tax be laid on such article
as property.
If that question be answered in the affirmative, then the purpose
of the constitutional restriction that "all exportation shall be
free from national burden" may be defeated, for if, in such
circumstances as are disclosed in this case, Congress can impose a
tax of one cent per pound on filled cheese, manufactured and
intended for immediate exportation, and about to be exported, it
can impose such taxes on articles manufactured in this country and
intended for immediate exportation as will make it impossible for
manufacturers to secure, or will deter them from attempting to
secure, contracts with foreign consumers or buyers. The result
would be that Congress, in time of peace and by means of taxation,
could bring about a condition of utter occlusion between the
manufacturers of this country and the markets of other countries.
Indeed, the several states could bring about that result by
taxation, for if an article manufactured for exportation and which
was prepared for exportation as soon as manufacture was completed
is not an
export from the moment such preparation was
begun, then a state may impose a tax upon it as
property
and compel the payment thereof before the article is removed from
its limits for exportation. I do not think that the framers of the
Constitution contemplated such a condition as possible.
In support of the views expressed in it, the opinion reproduces
the following observations by Mr. Justice Miller in one of his
lectures on Constitutional Law (p. 592):
"The Congress
Page 192 U. S. 438
of the United States, during the late Civil War, imposed a tax
upon cotton and tobacco, which tax was not limited to those
products when in the process of transportation, but was assessed on
all the cotton and tobacco in the country. It was urged that,
because the larger part of these products was exported out of the
country and sold to foreign nations, and because their production
was limited to a particular part of the country, the tax was
forbidden by the corresponding clause of the Constitution
prohibiting Congress from levying a tax on exports. Although the
question came at that time to the Supreme Court of the United
States, it was not then decided, because of a division of opinion
in that Court. The recent cases, however, of
Coe v. Errol,
116 U. S.
517, and
Turpin v. Burgess, 117 U. S.
504, seem to decide that the objection was not valid,
and hold that only such property as is in the actual process of
exportation, and which has begun its voyage or
its preparation
for the voyage, can be said to be an export."
I submit that these observations do not justify the conclusion
announced by the court, for the eminent jurist who made them says
that property is to be deemed an export from the time it is in the
actual process of exportation and "its preparation for the voyage"
has begun. That is, in substance, the precise principle for which I
am contending. Whilst the cheese was in the process of being
manufactured, it was not, of course, a subject of taxation under
the statute. It became manufactured filled cheese only when
manufacture was completed. But, as soon as it was manufactured and
prepared for shipment, and when it was about to be started on its
journey to Europe, the collector exacted from the plaintiffs the
property tax imposed by the act of 1896. In my judgment, within the
meaning of the Constitution and in every just sense, the cheese was
in the actual process of exportation, and became an export from the
moment when,
immediately after the completion of
manufacture, without loss of time, the plaintiffs in good faith
prepared it for shipment in fulfillment of their contracts with
foreign customers. In the
Fairbank case, the Court held
that
Page 192 U. S. 439
a mere stamp tax on a bill of lading taken at the time articles
were shipped from a state to a foreign country was a tax on the
articles themselves as exports, and was forbidden by the
constitutional provision that no tax or duty shall be laid on
articles exported from any state. It is now held that a tax on
articles admittedly manufactured only for exportation, and not for
sale or consumption in this country, and which are exported as soon
as they can be made ready for shipment, after the completion of
manufacture, in execution of contracts entered into prior to the
commencement of manufacture, is a tax on the articles themselves
as property, and not on them as exports. In short, the
effect of the present decision is to say that if Congress so wills,
articles manufactured in this country, although manufactured only
for exportation, and not for sale or consumption here, cannot be
exported to other countries except subject to such tax as Congress
may choose to impose on the manufactured articles as property.
Thus, despite the express prohibition of all taxes or duties upon
articles exported from the states, Congress is recognized as having
the same power over exports from the several states as it has
exercised over imports from foreign countries. I do not think it
has such power.
The views I have expressed are not in conflict with the judgment
in
Turpin v. Burgess, 117 U. S. 504,
cited in the opinion of the Court. That was not a case of a
property tax upon a manufactured article intended for exportation,
but a mere stamp tax imposed by the internal revenue law upon
manufactured tobacco, and placed upon the tobacco in order to
indicate the purpose to export it. The only issue was as to the
validity of the statute imposing that stamp tax. There was nothing
to show any purpose to export the goods immediately upon the
completion of manufacture. The goods remained in the factory, and
the Court said that they "might never be exported," and "whether
they would be or not would depend altogether on the will of the
manufacturer." There was no showing of preparation for exportation
as soon as such
Page 192 U. S. 440
preparation could begin after manufacture. In the present case,
as we have seen, it is admitted that the filled cheese was
manufactured for exportation and was being prepared, immediately
after manufacture, for exportation. The tax here was, in effect,
collected while the cheese was being made ready for exportation,
and therefore, to use the words of
Turpin v. Burgess,
whilst it "was being exported."
For the reasons stated, I am constrained to dissent from the
opinion and judgment of the Court.
I am authorized to say that THE CHIEF JUSTICE concurs in this
opinion.