1. A special tax on railroad and stage companies for every
passenger carried out of the state by them is a tax on the
passenger for the privilege of passing through the state by the
ordinary modes of travel, and is not a simple tax on the business
of the companies.
2. Such a tax imposed by a state is not in conflict with that
provision of the federal Constitution which forbids a state to lay
a duty on exports.
3. The power granted to Congress to regulate commerce with
foreign nations and among the states includes subjects of
legislation which are necessarily of a national character, and
therefore exclusively within the control of Congress.
4. But it also includes matters of a character merely local in
their operation, as the regulation of port pilots, the
authorization of bridges over navigable streams, and perhaps
others, and upon this class of subjects the state may legislate in
the absence of any such legislation by Congress.
5. If the tax on passengers when carried out of the state be
called a regulation of commerce, it belongs to the latter class,
and there being no legislation of Congress on the same subject, the
statute will not be void as a regulation of commerce.
6. The United States has a right to require the service of its
citizens at the seat of federal government, in all executive,
legislative, and judicial departments and at all the points in the
several states where the functions of government are to be
performed.
Page 73 U. S. 36
7. By virtue of its power to make war and to suppress
insurrection, the government has a right to transport troops
through all parts of the Union by the usual and most expeditious
modes of transportation.
8. The citizens o� the United States have the correlative right
to approach the great departments of the government, the ports of
entry through which commerce is conducted, and the various federal
offices in the states.
9. The taxing power, being in its nature unlimited over the
subjects within its control, would enable the state governments to
destroy the above-mentioned rights of the federal government and of
its citizens if the right of transit through the states by railroad
and other ordinary modes of travel were one of the legitimate
objects of state taxation.
10. The existence of such a power in the states is therefore,
inconsistent with objects for which the federal government was
established and with rights conferred by the Constitution on that
government and on the people. An exercise of such a power is
accordingly void.
In 1865, the Legislature of Nevada enacted that
"There shall be levied and collected a capitation tax of one
dollar upon every person leaving the state by any railroad, stage
coach, or other vehicle engaged or employed in the business of
transporting passengers for hire,"
and that the proprietors, owners, and corporations so engaged
should pay the said tax of one dollar for each and every person so
conveyed or transported from the state. For the purpose of
collecting the tax, another section required from persons engaged
in such business or their agents a report every month, under oath,
of the number of passengers so transported, and the payment of the
tax to the sheriff or other proper officer.
With the statute in existence, Crandall, who was the agent of a
stage company engaged in carrying passengers through the State of
Nevada, was arrested for refusing to report the number of
passengers that had been carried by the coaches of his company and
for refusing to pay the tax of one dollar imposed on each passenger
by the law of that state. He pleaded that the law of the state
under which he was prosecuted was void because it was in conflict
with the Constitution of the United States, and his plea being
overruled, the case came into the supreme court of the state. The
court -- considering that the tax laid was not an impost on
"exports"
Page 73 U. S. 37
nor an interference with the power of Congress "to regulate
commerce among the several states" -- decided against the right
thus set up under the federal Constitution.
Its judgment was now here for review.
Page 73 U. S. 39
MR. JUSTICE MILLER delivered the opinion of the Court.
The question for the first time presented to the Court by this
record is one of importance. The proposition to be considered is
the right of a state to levy a tax upon persons residing in the
state who may wish to get out of it, and upon persons not residing
in it who may have occasion to pass through it.
It is to be regretted that such a question should be submitted
to our consideration with neither brief nor argument on the part of
plaintiff in error. But our regret is diminished by the reflection
that the principles which must govern its determination have been
the subject of much consideration in cases heretofore decided by
this Court.
It is claimed by counsel for the state that the tax thus levied
is not a tax upon the passenger, but upon the business of the
carrier who transports him.
If the act were much more skillfully drawn to sustain this
hypothesis than it is, we should be very reluctant to admit that
any form of words which had the effect to compel every person
traveling through the country by the common and usual modes of
public conveyance to pay a specific sum to the state was not a tax
upon the right thus exercised. The statute before us is not,
however, embarrassed by any nice difficulties of this character.
The language which we have just quoted is that there shall be
levied and collected a capitation tax upon every person leaving the
state by any railroad or stage coach, and the remaining provisions
of the act which refer to this tax only provide a mode of
collecting it. The officers and agents of the railroad companies,
and the proprietors of the stage coaches, are made responsible for
this, and so become the collectors of the tax.
We shall have occasion to refer hereafter somewhat in detail to
the opinions of the judges of this Court in
The
Passenger
Page 73 U. S. 40
Cases, [
Footnote 1]
in which there were wide differences on several points involved in
the case before us. In the case from New York then under
consideration, the statute provided that the health commissioner
should be entitled to demand and receive from the master of every
vessel that should arrive in the port of New York from a foreign
port, one dollar and fifty cents for every cabin passenger, and one
dollar for each steerage passenger, and from each coasting vessel,
twenty-five cents for every person on board. That statute does not
use language so strong as the Nevada statute indicative of a
personal tax on the passenger, but merely taxes the master of the
vessel according to the number of his passengers; but the Court
held it to be a tax upon the passenger, and that the master was the
agent of the state for its collection. Chief Justice Taney, while
he differed from the majority of the Court and held the law to be
valid, said of the tax levied by the analogous statute of
Massachusetts that
"its payment is the condition upon which the state permits the
alien passenger to come on shore and mingle with its citizens and
to reside among them. It is demanded of the captain, and not from
every separate passenger, for convenience of collection. But the
burden evidently falls upon the passenger, and he in fact pays it
either in the enhanced price of his passage or directly to the
captain before he is allowed to embark for the voyage. The nature
of the transaction and the ordinary course of business show that
this must be so."
Having determined that the statute of Nevada imposes a tax upon
the passenger for the privilege of leaving the state or passing
through it by the ordinary mode of passenger travel, we proceed to
inquire if it is for that reason in conflict with the Constitution
of the United States.
In the argument of the counsel for the defendant in error and in
the opinion of the Supreme Court of Nevada, which is found in the
record, it is assumed that this question must be decided by an
exclusive reference to two provisions of
Page 73 U. S. 41
the Constitution, namely that which forbids any state, without
the consent of Congress, to lay any imposts or duties on imports or
exports and that which confers on Congress the power to regulate
commerce with foreign nations and among the several states.
The question as thus narrowed is not free from difficulties. Can
a citizen of the United States traveling from one part of the Union
to another be called an export? It was insisted in
The
Passenger Cases, to which we have already referred, that
foreigners coming to this country were "imports" within the meaning
of the Constitution, and the provision of that instrument that the
migration or importation of such persons as any of the states then
existing should think proper to admit should not be prohibited
prior to the year 1808, but that a tax might be imposed on such
importation, was relied on as showing that the word "import,"
applied to persons as well as to merchandise. It was answered that
this latter clause had exclusive reference to slaves, who were
property as well as persons, and therefore proved nothing. While
some of the judges who concurred in holding those laws to be
unconstitutional gave as one of their reasons that they were taxes
on imports, it is evident that this view did not receive the assent
of a majority of the Court. The application of this provision of
the Constitution to the proposition which we have stated in regard
to the citizen is still less satisfactory than it would be to the
case of foreigners migrating to the United States.
But it is unnecessary to consider this point further in the view
which we have taken of the case.
As regards the commerce clause of the Constitution, two
propositions are advanced on behalf of the defendant in error.
1. That the tax imposed by the state on passengers is not a
regulation of commerce.
2. That if it can be so considered, it is one of those powers
which the states can exercise until Congress has so legislated as
to indicate its intention to exclude state legislation on the same
subject.
The proposition that the power to regulate commerce, as granted
to Congress by the Constitution, necessarily excludes
Page 73 U. S. 42
the exercise by the states of any of the power thus granted is
one which has been much considered in this Court, and the earlier
discussions left the question in much doubt. As late as the January
Term 1849, the opinions of the judges in
The Passenger
Cases show that the question was considered to be one of much
importance in those cases, and was even then unsettled, though
previous decisions of the Court were relied on by the judges
themselves as deciding it in different ways. It was certainly, so
far as those cases affected it, left an open question.
In the case of
Cooley v. Board of Wardens, [
Footnote 2] four years later, the same
question came directly before the Court in reference to the local
laws of the port of Philadelphia concerning pilots. It was claimed
that they constituted a regulation of commerce, and were therefore
void. The Court held that they did come within the meaning of the
term "to regulate commerce," but that until Congress made
regulations concerning pilots, the states were competent to do
so.
Perhaps no more satisfactory solution has ever been given of
this vexed question than the one furnished by the Court in that
case. After showing that there are some powers granted to Congress
which are exclusive of similar powers in the states because they
are declared to be so, and that other powers are necessarily so
from their very nature, the Court proceeds to say that the
authority to regulate commerce with foreign nations and among the
states includes within its compass powers which can only be
exercised by Congress, as well as powers which, from their nature,
can best be exercised by the state legislatures, to which latter
class the regulation of pilots belongs.
"Whatever subjects of this power are in their nature national or
admit of one uniform system or plan of regulation may justly be
said to be of such a nature as to require exclusive legislation by
Congress."
In the case of
Gilman v. Philadelphia [
Footnote 3] this doctrine is reaffirmed, and
under it a bridge across a stream navigable from the ocean,
authorized by state law, was held to be
Page 73 U. S. 43
well authorized in the absence of any legislation by Congress
affecting the matter.
It may be that under the power to regulate commerce among the
states, Congress has authority to pass laws the operation of which
would be inconsistent with the tax imposed by the state of Nevada,
but we know of no such statute now in existence. Inasmuch,
therefore, as the tax does not itself institute any regulation of
commerce of a national character or which has a uniform operation
over the whole country, it is not easy to maintain, in view of the
principles on which those cases were decided, that it violates the
clause of the federal Constitution which we have had under
review.
But we do not concede that the question before us is to be
determined by the two clauses of the Constitution which we have
been examining.
The people of these United States constitute one nation. They
have a government in which all of them are deeply interested. This
government has necessarily a capital established by law, where its
principal operations are conducted. Here sits its legislature,
composed of senators and representatives, from the states and from
the people of the states. Here resides the President, directing
through thousands of agents the execution of the laws over all this
vast country. Here is the seat of the supreme judicial power of the
nation, to which all its citizens have a right to resort to claim
justice at its hands. Here are the great executive departments,
administering the offices of the mails, of the public lands, of the
collection and distribution of the public revenues, and of our
foreign relations. These are all established and conducted under
the admitted powers of the federal government. That government has
a right to call to this point any or all of its citizens to aid in
its service, as members of the Congress, of the courts, of the
executive departments, and to fill all its other offices, and this
right cannot be made to depend upon the pleasure of a state over
whose territory they must pass to reach the point where these
services must be rendered. The government also has its offices of
secondary
Page 73 U. S. 44
importance in all other parts of the country. On the seacoasts
and on the rivers it has its ports of entry. In the interior it has
its land offices, its revenue offices, and its subtreasuries. In
all these it demands the services of its citizens and is entitled
to bring them to those points from all quarters of the nation, and
no power can exist in a state to obstruct this right that would not
enable it to defeat the purposes for which the government was
established.
The federal power has a right to declare and prosecute wars,
and, as a necessary incident, to raise and transport troops through
and over the territory of any state of the Union.
If this right is dependent in any sense, however limited, upon
the pleasure of a state, the government itself may be overthrown by
an obstruction to its exercise. Much the largest part of the
transportation of troops during the late rebellion was by
railroads, and largely through states whose people were hostile to
the Union. If the tax levied by Nevada on railroad passengers had
been the law of Tennessee, enlarged to meet the wishes of her
people, the Treasury of the United States could not have paid the
tax necessary to enable its armies to pass through her
territory.
But if the government has these rights on her own account, the
citizen also has correlative rights. He has the right to come to
the seat of government to assert any claim he may have upon that
government or to transact any business he may have with it. To seek
its protection, to share its offices, to engage in administering
its functions. He has a right to free access to its seaports,
through which all the operations of foreign trade and commerce are
conducted, to the subtreasuries, the land offices, the revenue
offices, and the courts of justice in the several states, and this
right is in its nature independent of the will of any state over
whose soil he must pass in the exercise of it.
The views here advanced are neither novel nor unsupported by
authority. The question of the taxing power of the states, as its
exercise has affected the functions of the federal government, has
been repeatedly considered by this
Page 73 U. S. 45
Court, and the right of the states in this mode to impede or
embarrass the constitutional operations of that government, or the
rights which its citizens hold under it, has been uniformly
denied.
The leading case of this class is that of
McCulloch v.
Maryland. [
Footnote 4] The
case is one every way important, and is familiar to the statesman
and the constitutional lawyer. The Congress, for the purpose of
aiding the fiscal operations of the government, had chartered the
Bank of the United States, with authority to establish branches in
the different states and to issue notes for circulation. The
Legislature of Maryland had levied a tax upon these circulating
notes which the bank refused to pay on the ground that the statute
was void by reason of its antagonism to the federal Constitution.
No particular provision of the Constitution was pointed to as
prohibiting the taxation by the state. Indeed, the authority of
Congress to create the bank, which was strenuously denied, and the
discussion of which constituted an important element in the opinion
of the Court, was not based by that opinion on any express grant of
power, but was claimed to be necessary and proper to enable the
government to carry out its authority to raise a revenue, and to
transfer and disburse the same. It was argued also that the tax on
the circulation operated very remotely, if at all, on the only
functions of the bank in which the government was interested. But
the Court, by a unanimous judgment, held the law of Maryland to be
unconstitutional.
It is not possible to condense the conclusive argument of Chief
Justice Marshall in that case, and it is too familiar to justify
its reproduction here, but an extract or two, in which the results
of his reasoning are stated, will serve to show its applicability
to the case before us. "That the power of taxing the bank by the
states," he says,
"may be exercised so as to destroy it is too obvious to be
denied. But taxation is said to be an absolute power which
acknowledges no other limits than those prescribed by the
Constitution, and, like
Page 73 U. S. 46
sovereign power of any description, is trusted to the discretion
of those who use it. But the very terms of this argument admit that
the sovereignty of the state in the article of taxation is
subordinate to, and may be controlled by, the Constitution of the
United States."
Again he says,
"We find then, on just theory, a total failure of the original
right to tax the means employed by the government of the Union for
the execution of its powers. The right never existed, and the
question of its surrender cannot arise. . . . That the power to tax
involves the power to destroy; that the power to destroy may defeat
and render useless the power to create; that there is a plain
repugnance in conferring on one government a power to control the
constitutional measures of another, which other, with respect to
those very means, is declared to be supreme over that which exerts
the control, are propositions not to be denied. If the states may
tax one instrument employed by the government in the execution of
its powers, they may tax any and every other instrument. They may
tax the mail; they may tax the mint; they may tax patent rights;
they may tax the papers of the custom house; they may tax judicial
process; they may tax all the means employed by the government to
an excess which would defeat all the ends of government. This was
not intended by the American people. They did not design to make
their government dependent on the states."
It will be observed that it was not the extent of the tax in
that case which was complained of, but the right to levy any tax of
that character. So in the case before us it may be said that a tax
of one dollar for passing through the state of Nevada by stage
coach or by railroad cannot sensibly affect any function of the
government or deprive a citizen of any valuable right. But if the
state can tax a railroad passenger one dollar, it can tax him one
thousand dollars. If one state can do this, so can every other
state. And thus one or more states covering the only practicable
routes of travel from the east to the west, or from the north to
the south, may totally prevent or seriously burden all
transportation of passengers from one part of the country to the
other.
Page 73 U. S. 47
A case of another character in which the taxing power as
exercised by a state was held void because repugnant to the federal
Constitution, is that of
Brown v. state of Maryland.
[
Footnote 5]
The State of Maryland required all importers of foreign
merchandise who sold the same by wholesale, by bale or by package,
to take out a license, and this act was claimed to be
unconstitutional. The Court held it to be so on three different
grounds: first, that it was a duty on imports; second, that it was
a regulation of commerce; and third, that the importer who had paid
the duties imposed by the United States, had acquired a right to
sell his goods in the same original packages in which they were
imported. To say nothing of the first and second grounds, we have
in the third a tax of a state declared to be void because it
interfered with the exercise of a right derived by the importer
from the laws of the United States. If the right of passing through
a state by a citizen of the United States is one guaranteed to him
by the Constitution, it must be as sacred from state taxation as
the right derived by the importer from the payment of duties to
sell the goods on which the duties were paid.
In the case of
Weston v. City of Charleston, [
Footnote 6] we have a case of state
taxation of still another class held to be void as an interference
with the rights of the federal government. The tax in that instance
was imposed on bonds or stocks of the United States, in common with
all other securities of the same character. It was held by the
Court that the free and successful operation of the government
required it at times to borrow money; that to borrow money it was
necessary to issue this class of national securities, and that if
the states could tax these securities, they might so tax them as to
seriously impair or totally destroy the power of the government to
borrow. This case, itself based on the doctrines advanced by the
Court in
McCulloch v. State of Maryland, has been followed
in all the recent cases involving state
Page 73 U. S. 48
taxation of government bonds, from that of
People of New
York v. Tax Commissioners, [
Footnote 7] to the decisions of the court at this
term.
In all these cases, the opponents of the taxes levied by the
states were able to place their opposition on no express provision
of the Constitution, except in that of
Brown v. Maryland.
But in all the other cases and in that case also, the Court
distinctly placed the invalidity of the state taxes on the ground
that they interfered with an authority of the federal government,
which was itself only to be sustained as necessary and proper to
the exercise of some other power expressly granted.
In
The Passenger Cases, to which reference has already
been made, JUSTICE GRIER, with whom Justice Catron concurred, makes
this one of the four propositions on which they held the tax void
in those cases. Judge Wayne expresses his assent to JUSTICE GRIER's
views, and perhaps this ground received the concurrence of more of
the members of the Court who constituted the majority than any
other. But the principles here laid down may be found more clearly
stated in the dissenting opinion of the Chief Justice in those
cases, and with more direct pertinency to the case now before us
than anywhere else. After expressing his views fully in favor of
the validity of the tax, which he said had exclusive reference to
foreigners, so far as those cases were concerned, he proceeds to
say, for the purpose of preventing misapprehension, that so far as
the tax affected American citizens, it could not, in his opinion,
be maintained. He then adds:
"Living as we do under a common government, charged with the
great concerns of the whole Union, every citizen of the United
States from the most remote states or territories, is entitled to
free access not only to the principal departments established at
Washington, but also to its judicial tribunals and public offices
in every state in the Union. . . . For all the great purposes for
which the federal government was formed, we are one people, with
one common country.
Page 73 U. S. 49
We are all citizens of the United States, and as members of the
same community must have the right to pass and repass through every
part of it without interruption, as freely as in our own states.
And a tax imposed by a state for entering its territories or
harbors is inconsistent with the rights which belong to citizens of
other states as members of the Union and with the objects which
that Union was intended to attain. Such a power in the states could
produce nothing but discord and mutual irritation, and they very
clearly do not possess it."
Although these remarks are found in a dissenting opinion, they
do not relate to the matter on which the dissent was founded. They
accord with the inferences which we have already drawn from the
Constitution itself and from the decisions of this Court in
exposition of that instrument.
Those principles, as we have already stated them in this
opinion, must govern the present case.
Judgments reversed and the case remanded to the Supreme
Court of the State of Nevada, with directions to discharge the
plaintiff in error from custody.
[
Footnote 1]
48 U. S. 7 How.
283.
[
Footnote 2]
53 U. S. 12 How.
299.
[
Footnote 3]
70 U. S. 3 Wall.
713.
[
Footnote 4]
17 U. S. 4 Wheat.
316.
[
Footnote 5]
25 U. S. 12 Wheat.
419.
[
Footnote 6]
27 U. S. 2 Pet.
449.
[
Footnote 7]
67 U. S. 2 Black
620.
MR. JUSTICE CLIFFORD.
I agree that the state law in question is unconstitutional and
void, but I am not able to concur in the principal reasons assigned
in the opinion of the Court in support of that conclusion. On the
contrary, I hold that the act of the state legislature is
inconsistent with the power conferred upon Congress to regulate
commerce among the several states, and I think the judgment of the
Court should have been placed exclusively upon that ground. Strong
doubts are entertained by me whether Congress possesses the power
to levy any such tax, but whether so or not, I am clear that the
state legislature cannot impose any such burden upon commerce among
the several states. Such commerce is secured against such
legislation in the states by the Constitution, irrespective of any
Congressional action.
THE CHIEF JUSTICE also dissents, and concurs in the views I have
expressed.