# Woodruff v. Parham

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## Dissenting Opinion

    Nelson
United States Supreme Court
75 U.S. 123
Woodruff v. Parham
ERROR to the Supreme Court of Alabama. The case being thus:
The Constitution thus ordains:
'Congress shall have power to regulate commerce with foreign nations and among the several States.'
'No State shall levy any imposts or duties on imports or exports.'
'The citizens of each State shall be entitled to all the immunities and privileges of citizens of the several States.'
With these declarations of the Constitution in force, the city of Mobile, Alabama, in accordance with a provision in its charter, authorized the collection of a tax for municipal purposes on real and personal estate, sales at auction, and sales of merchandise, capital employed in business and income within the city. This ordinance being on the city statutebook Woodruff and others, auctioneers, received, in the course of their business for themselves, or as consignees and agents for others, large amounts of goods and merchandise, the product of States other than Alabama, and sold the same in Mobile to purchasers in the original and unbroken packages. Thereupon, the tax collector for the city, demanded the tax levied by the ordinance. Woodruff refused to pay the tax, asserting that it was repugnant to the above-quoted provisions of the Constitution. The question coming finally, on a case stated, into the Supreme Court of the State, where the first two of the above-quoted provisions of the Constitution were relied on by the auctioneers as a bar to the suit, the said court decided in favor of the tax. And the question was now here for review.
Messrs. J. A. Campbell and P. Hamilton, for the plaintiffs in error:
The question is: Can a State tax imports into it from other States of the Union?
That question has been answered by Chief Justice Marshall in Brown v. Maryland. The question there was the propriety of a license tax imposed by the State upon the merchant, as a prerequisite of the right to sell the imported article. After discussing the general principles involved in the constitutional prohibition upon the State to levy imposts or duties on imports or exports, and deciding that this tax, though indirect in form, was, in fact, a duty on imports, and therefore illegal, he remarks:
'It may be proper to add, that we suppose the principles laid down in this case, apply equally to importations from a sister State.'
It is true, the remark of the Chief Justice was not directly upon the point in judgment, but it was upon a matter of almost identical character; and when regard is had to the history of the times immediately preceding the establishment of the Constitution, and to the causes which led to its formation-the conflicting commercial claims of the several States, and the evils thereby produced, calling for the establishment of uniform laws, and the creation of a National legislation which should be uniform, the land throughout-the the force of the remark falling from that eminent judge, and announced as the conclusion of the court, carries with it the weight of judicial authority.
That opinion has been declared, in Almy v. California, to be the judgment of the court.
In that case, California, for purposes of revenue, directed a stamp tax to be imposed on bills of lading for the transportation, from any point or place in that State to any point or place without the State, of gold or silver in any form. The master of a ship, then lying in that State, refused to pay for the stamp on a bill of lading, signed by him, for the transportation from California to New York of some gold placed on his vessel, and was indicted for this violation of the law. The question then was: Is this stamp act, so required to be paid by State authority, an impost or duty on an export, within the meaning of the constitutional prohibition upon the State? It was held, by a unanimous bench, that the tax fell within the terms of the prohibition. As in this case, so in that, the transportation was between States: it was from the State of California to the State of New York. The transaction had no relation to commerce with any foreign nation. It was between two States; they alone were concerned.
The transaction was an export from one State to another State. It was, nevertheless, held to be a case of export; and, therefore, protected against any interference or regulation by mere State authority. If that be so, imports and exports being placed by the terms of the fundamental law upon a footing of perfect equality, as to State imposition, the import in this case is equally protected with the export in that, and the State law is equally void.
Upon the authority of the two cases cited, the argument is exhausted. The one is the complement of the other: the two cover the whole ground of import and export into and from a State. They establish the rule, that no matter in what form, whether by license or by stamp duty, or by any other device, a tax may be sought to be imposed by the authority of the State upon commerce not wholly internal, the attempt is illegal, and against the theory of National sovereignty and National control, which is established over the whole field of affairs external to a State; and that this rule applies whether the portion external to the State which seeks to tax is connected with, or internal to a sister State, or concerns the business of a purely foreign nation. In either event, the power to tax that commerce does not exist; it belongs alone to the General Government, to which alone is intrusted the regulation of all those affairs which are not purely internal, and within the State.
And this would seem to result from the language used in the Constitution in the grant of power to regulate commerce; for the grant to Congress is universal.
The prohibition upon the States is correlative. They may not coin money, or make anything but gold and silver coin a tender; they may not make any law to impair the obligation of a contract; they may not lay imposts or duties on imports or exports; they may not lay any duty of tonnage; and may not make any agreement with themselves, or with foreign powers.
The incidental powers in relation to bankruptcy, post-offices, post-roads, piracies, useful inventions, and kindred matters, are all intrusted to the General Government.
These grants to the one, and prohibition on the other, seem clearly to indicate where the whole power of regulation over matters purely external to a State, or common to all, was intended to be placed.
The question here is not of pilotage, of quarantine, of police regulations, or of any power which partakes of the character of either. On the part of the State, it is an attempt to tax an article brought into it from another State, for purpose of sale: it is, so far as commerce is concerned, a burden upon the article of import, because it is a subject of commerce, and is used in commerce: it is, therefore, in its operation, a regulation of commerce; and, it is, in its form and effect, so far as the State can make it, universal-having a uniform operation over the whole country; for it operates, so far as the city tax is concerned, on all articles of import; and, so far as the State is concerned, on all liquors coming from all the States.
Passing by the License Cases, where nearly every judge gave an opinion, and where it may be difficult to say what was adjudged, we come to the recent case of Crandall v. Nevada, where the right of the citizen of a State to protection, in his property and privileges, as a subject of the National government, against injurious legislation by a State government, is emphatically declared, and taking the various decisions of the court together we must admit that the right of the citizen of each State to frequent the ports of the other States, with his person and property, is a right of National origin and protection, and subject alone to National regulation; that no State regulation, for whatever purpose established, can in the smallest degree impair that right; and that all such State legislation, in the presence of this higher right, inhering in the citizen, and springing from the National organization, falls idle and powerless.
The power existing in Congress to regulate, its abstaining from legislation on the subject, is as expressive an enactment as the most positive declaration could be. It is a declaration that the commerce between the States shall be free.
Mr. P. Phillips, contra:
If the exemption now contended for were sustained, goods manufactured in the State would be subject to the tax, while goods of the same character manufactured in another State would go free.
The Constitution cannot be construed to present such a result. When it declared that 'the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States,' it provided for harmony by securing equality.
While it might be admitted, that a State cannot lay a discriminating tax, for the purpose of aiding its domestic manufactures, it would be strange, if its taxing power was so restricted, as to work a discrimination against its own manufacturers.
But the claim as made in this case is broader still, for the goods so brought from another State may have been imported from foreign countries. Such goods, when sold by the importer, were subject to taxation by the State in which they were thus imported and sold. When, then, goods thus subject to State taxation are carried to another State for resale, by what change are they withdrawn from this power?
The individual States possess an independent and uncontrollable authority, to raise their own revenue, for the supply of their own wants, and with the single exception of duties on imports or exports retain that authority in the most absolute and unqualified sense.
The prohibition against taxing 'imports or exports' refers exclusively to foreign commerce. Its object, as shown by the debates, was to secure those States, which from geographical position, could not import for themselves, from the exercise of the taxing power of the States whose ports they would be compelled to use.
In the case of Pierce v. New Hampshire, a barrel of gin was purchased in Massachusetts, brought coastwise to Dover, and then sold. The vendor was indicted under a State statute. The defendant sought to protect himself by asking a charge to the jury, that the law was invalid, because this gin was an import, and thus beyond the power of State taxation. This charge was refused and the party was convicted.
On appeal to the Supreme Court of the State the same question was made. It was again overruled, and the judgment affirmed. On writ of error to this court, it was again renewed, and was discussed at some length by both sides. The judges gave separate opinions, but they concurred in affirming the judgment. This result could not have been reached if the gin had been an 'import' within the meaning of the prohibition.
The expression relied on from the opinion in the case of Brown v. Maryland, that 'we suppose the principles laid down apply equally to importations from a sister State,' was not overlooked. McLean, J., speaks of it as 'a remark which must have been made with less consideration than the other points ruled in the case.' The opinions of Catron, Woodbury, and Daniels, JJ., are equally emphatic as to the construction of this prohibition.
The opinion of Taney, C. J., distinguishes this case from that of Brown v. Maryland, which related to foreign commerce, and thus concludes:

## Notes

* ↑ 12 Wheaton, 449.
* ↑ 24 Howard, 169.
* ↑ 5 Howard, 504.
* ↑ 6 Wallace, 35; and see Gibbons v. Ogden, 9 Wheaton, 186; Sinnot v. Davenport, 22 Howard, 227.
* ↑ Federalist, No. 32.
* ↑ Madison Papers, 3d vol. 1445; License Cases, 5 Howard, 575.
* ↑ 5 Howard, 554.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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