# Pullman's Palace-Car Company v. Pennsylvania/Dissent Bradley

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* Dissenting Opinion Bradley
United States Supreme Court
141 U.S. 18
Pullman's Palace-Car Company v. Pennsylvania
BRADLEY, J., (with whom concurred FIELD and HARLAN, JJ., dissenting.) I dissent from the judgment of the court in this case, and will state briefly my reasons. I concede that all property, personal as well as real, within a state, and belonging there, may be taxed by the state. Of that there can be no doubt. But where property does not belong in the state, another question arises. It is the question of the jurisdiction of the state over the property. It is stated in the opinion of the court as a fundamental proposition on which the opinion really turns that all personal as well as real property within a state is subject to the laws thereof. I conceive that that proposition is not maintainable as a general and absolute proposition. Among independent nations, it is true, persons and property within the territory of a nation aresubject to its laws, and it is responsible to other ati ons for any injustice it may do to the persons or property of such other nations. This is a rule of international law. But the states of this government are not independent nations. There is such a thing as a constitution of the United States, and there is such a thing as a government of the United States, and there are many things, and many persons, and many articles of property that a state cannot lay the weight of its finger upon, because it would be contrary to the constitution of the United States. Certainly, property merely carried through a state cannot be taxed by the state. Such a tax would be a duty,-which a state cannot impose. If a drove of cattle is driven through Pennsylvania from Illinois to New York for the purpose of being sold in New York, while in Pennsylvania it may be subject to the police regulations of the state, but it is not subject to taxation there. It is not generally subject to the laws of the state, as other property is. So if a train of cars starts at Cincinnati for New York, and passes through Pennsylvania, it may be subject to the police regulations of that state while within it, but it would be repugnant to the constitution of the United States to tax it. We have decided this very question in the Case of State Freight Tax, 15 Wall. 232. The point was directly raised and decided that property on its passage through a state in the course of interstate commerce cannot be taxed by the state, because taxation is incidentally regulation, and a state cannot regulate interstate commerce. The same doctrine was recognized in Coe v. Errol, 116 U.S. 517, 6 Sup. Ct. Rep. 475. And surely a state cannot interfere with the officers of the United States in the performance of their duties, whether acting under the judicial, military, postal, or revenue departments. They are entirely free from state control. So a citizen of the United States, or any other person, in the performance of any duty, or in the exercise of any privilege, under the constitution or laws of the United States is absolutely free from state control in relation to such matters. So that the general proposition that all persons and personal property within a state are subject to the laws of the state, unless materially modified, cannot be true. But when personal property is permanently located within a state for the purpose of ordinary use or sale, then, indeed, it is subject to the laws of the state and to the burdens of taxation, as well when owned by persons residing out of the state as when owned by persons residing in the state. It has then acquired a situs in the state where it is found. A man residing in New York may own a store, a factory, or a mine in Alabama, stocked with goods, utensils, or materials for sale or use in that state. There is no question that the situs of personal property so situated is in the state where it is found, and that it may be subjected to double taxation,-in the state of the owner's residence, as a part of the general mass of his estate; and in the state of its situs. Although this is a consequence which often bears hardly on the owner, yet it is too firmly sanctioned by the law to be disturbed, and no remedy seems to exist but a sense of equity and justice in the legislatures of the several states. The rule would undoubtedly be more just if it made the property taxable, like lands and real estate, only in the place where it is permanently situated. Personal as well as real property may have a situs of its own, independent of the owner's residence, even when employed in interstate or foreign commerce. An office or warehouse connected with a steam-ship line or with a continental railway may be provided with furniture and all the apparatus and appliances usual in such establishments. Such property would be subject to the lex rel sitae and to local taxation, though solely devoted to the purposes of the business of those lines. But the ships that traverse the sea, and the cars that traverse the land, in those lines be ing the vehicles of commerce, interstate or foreign, and intended for its movement from one state or country to another, and having no fixed or permanent situs or home except at the residence of the owner, cannot, without an invasion of the powers and duties of the federal government, be subjected to the burdens of taxation in the places where they only go or come in the transaction of their business, except where they belong. Hays v. Steam-Sbip Co., 17 How. 596; Morgan v. Parham, 16 Wall. 471; Transportation Co. v. Wheeling, 99 U.S. 273. To contend that there is any difference between cars or trains of cars and ocean steamships in this regard is to lose sight of the essential qualities of things. This is a matter that does not depend upon the affirmative action of congress. The regulation of ships and vessels by act of congress does not make them the instruments of commerce. They would be equally so if no such affirmative regulations existed. For the states to interfere with them in either case would be to interfere with and to assume the exercise of that power which by the constitution has been surrendered by the states to the government of the United States, namely, the power to regulate commerce.
Reference is made in the opinion of the court to the case of Railroad Co. v. Maryland, 21 Wall. 456, in which it was said that commerce on land between the different states is strikingly dissimilar in many respects from commerce on water; but that was said in reference to the highways of transportation in the two cases, and the difference of control which the state has in one case from that which it can possibly have in the other. A railroad is laid on the soil of the state by virtue of authority granted by the state, and constantly subject to the police jurisdiction of the state; while the sea and navigable rivers are highways created by nature, and not subject to state control. The question in that case related to the power of the state over its own corporation, in reference to its rate of fares and the remuneration it was required to pay to the state for its franchises,-an entirely different question from that which arises in the present case. Reference is also made to expressions used in the opinion in Ferry Co. v. Pennsylvania, 114 U.S. 196, 5 Sup. Ct. Rep. 826, which, standing alone, would seem to concede the right of a state to tax foreign corporations engaged in foreign or interstate commerce if such property is within the jurisdiction of the state. But the whole scope of that opinion is to show that neither the vehicles of commerce coming within the state nor the capital of such corporations is taxable there, but only the property having a situs there,-as the wharf used for landing passengers and freight. The entire series of decisions to that effect are cited and relied on. Of course I do not mean to say that either railroad cars or ships are to be free from taxation, but I do say that they are not taxable by those states in which they are only transiently present in the transaction of their commercial operations. A British ship coming to the harbor of New York from Liverpool ever so regularly, and spending half its time (when not on the ocean) in that harbor, cannot be taxed by the state of New York, (harbor, pilotage, and quarantine dues not being taxes.) So New York ships plying regularly to the port of New Orleans so that one of the line may be always lying at the latter port, cannot be taxed by the state of Louisiana. Cases above cited. No more can a train of cars belonging in Pennsylvania, and running regularly from Philadelphia to New York, or to Chicago, Philadelphia to state of New York in the one case, or by Illinois in the other. If it may lawfully be taxed by these states, it may lawfully be taxed by all the intermediate states,-New Jersey, Ohio, and Indiana. And then we should have back again all the confusion and competition and state jealousies which existed before the adoption of the constitution, and for putting an end to which the consitu tion was adopted.
In the opinion of the court it is suggested that if all the states should adopt as equitable a rule of proportioning the taxes on the Pullman Company as that adopted by Pennsylvania a just system of taxation of the whole capital stock of the company would be the result. Yes, if _____! But Illinois may tax the company on its whole capital stock. Where would be the equity then? This, however, is a consideration that cannot be compared with the question as to the power to tax at all,-as to the relative power of the state and general governments over the regulation of internal commerce,-as to the right of the states to resume those powers which have been vested in the government of the United States.
It seems to me that the real question in the present case is as to the situs of the cars in question. They are used in interstate commerce, between Pennsylvania, New York, and the western states. Their legal situs no more depends on the states or places where they are carried in the course of their operations than would that of any steam-boats employed by the Pennsylvania Railroad Company to carry passengers on the Ohio or Mississippi. If such steam-boats belonged to a company located at Chicago, and were changed from time to time, as their condition as to repairs and the convenience of the owners might render necessary, is it possible that the states in which they were running and landing in the exercise of interstate commerce could subject them to taxation? No one, I think, would contend this. It seems to me that the cars in question belonging to the Pullman Car Company are in precisely the same category.
The case of Telegraph Co. v. Attorney General, 125 U.S. 530, 8 Sup. Ct. Rep. 961, is entirely different from the present. In that case there was no question as to the situs of the property taxed. It was situated within the state, consisting of poles, and wires, and offices, and a general plant for telegraphic purposes. The property belonged in Massachusetts, and was consequently taxable there. There was a phase of that case which led some of the justices of the court to doubt as to the proper decision to be made. The difficulty was this: The tax was, in terms, made upon a certain proportional part of the capital stock of the company. That proportion was regulated by the number of miles of telegraph within the state as compared with the number of miles of telegraph belonging to the company in the whole country. It was objected that the property of the company situated in Massachusetts had no necessary relation to the said proportion of the capital stock, because the aggregate value of the stock might depend on property, franchises, and amount of business outside of Massachusetts, largely out of proportion to the miles of telegraph lines outside of that state. But the difficulty of getting at the true value of the property within the state, and of adopting any other rule for ascertaining it, as well as the failure of the company to show that the rule adopted produced any unfair results, finally induced an acquiescence in the decision, but expressly on the ground that, though the tax was nominally on the shares of the capital stock of the company, it was in effect a tax upon the property owned and used by it in Massachusetts; the proportional length of the lines in that state to their entire length throughout the whole country being merely used as the basis for ascertaining the value of that property. The same difficulty as to the method of determining value exists in the present case which existed in that; but the more serious difficulty lies in the question of the situs of the porperty, and the consequent jurisdiction of the state of Pennsylvania to tax it. It is not fast property. It does not consist of real estate. It does not attach itself to the land. It is movable, and engaged in interestate commerce, not in Pennsylvania alone, but in that and other states; and the question is, how can such property be taxed by a state in which it does not belong? It is indirectly but virtually taxing the passengers,-many of them carried from New York to Chicago, or from Chicago to New York, and most of them from one state to another. It is clearly a burden on interstate commerce. The opinion of the court is based on the idea that the cars are taxable in Pennsylvania because a certain number continuously abide there. But how can they be said to abide there when they only stop at Philadelphia and other stations to take on passengers? And it is all the same whether they cross the state entirely, or run into or out of other states with a terminus in Pennsylvania. It is only by virtue of such of its property as is situated in Pennsylvania that the Pullman Company can be taxed there. Its capital stock, as such, is certainly not taxable there. In the case of Telegraph Co. v. Attorney General, the tax was sustained only on the ground that it was a tax on the property in Massachusetts. The idea that the capital stock, as such, could be taxed was repudiated. The state can no more tax the capital stock of a foreign corporation than it can tax the capital of a foreign person. Pennsylvania cannot tax a citizen and resident of New York, either for the whole or any portion of his general property or capital. It can only tax such property of that citizen as may be located and have a situs in Pennsylvania. State Tax on Foreign Bonds, 15 Wall. 300. And it is exactly the same with a foreign corporation. Its capital, as such, is not taxable. Ferry Co. v. Pennsylvania, qua supra. To hold otherwise would lead to the most oppressive and unjust proceedings. It would lead to a course of spoliation and reprisals that would endanger the harmony of the Union.
The same dissent is made to the opinion in Palace Car Co. v. Hayward infra.
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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