The New York herald., 1868-06-16
UNITED STATES SUPREME COURT


The Question of the Right to Tax Public
Travel-The States Have No Authority to
Impose Such "a Taxa Case for the Con.
siderati0n of Maryland and New Jersey.
WtUtan H. Crondeli, PlaintiG IN Error, rs. The
state OF Neudda. IN Error TO the Supreme court OF
heState OF rNeUddd.-The decision in this cause settles
question of great public interest, and which having
hitherto been undetermined has been the cause Of
much legislation on the part OF the several States
particularly New Jersey and Maryland both OF which
have laws their statute books imposing tax such
is complained Of in this Mr.. Justice Miller
delivered the opinion OF the cOur:The question for
the first time presented to the court by this record IL
one Of Importance. The proposition to be considered
is the right Of State to levy tax upon persons re-
siding 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 1t. The plalntir
in error, who was the agent Of stage
company engaged In carrying passengers through
the State OF Nevada, arrested FOR refusing to
report the number OF passengers that had been
carried by the coaches OF his Company and for re-
fusng to pay the tax of one dollar imposed on each
passenger by the law Of that State. He pleaded In
good form 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 into the Supreme
Court OF the State, where 1t was decided against the
claim thus set up under the federal constitution.
The provisions Of the statute charged to be in viola
ton of the constitution to be found in sections
page 27l OF the statutes Of Nevada for that
year. Section ninety enacts that "there shall
be levied and collected a captatiOn tax Of
one dollar upon every person leaving the State by
any vehicle employed in transporting passengers for
hire ana that the propretors so engaged shall pay
said tax OF one dollar FOR each and every person
so conveyed from the state" 1t is claimed
by counsel for the state that the tax thus
levied Is not tax upon the passenger, but
upon the business OF the carrier who transports him.
II the act were more skilfully drawn to sustain this
hypothesis than is we should be very reluctant to
which pct
to compel every person travelling through the coun
try by the common aud usual modes of public con-
veyance to pay specific sum to the State 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 captation 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 mode Of collecting 1t.
Having determined that the statute OF Nevada i'm
poses tax upon the passenger for the privilege of
leaving the state or passing through II by the ordi
nary mode OF passenger travel we proceed to inquire
II 1t Is for that reason In conflict with the consttu
ton Of the United States. The proposition that the
power to regulate commerce. granted to Congress
by the constitution necessarily excludes the exercise
by the States OF any OF the power granted thereto,
and Is one which has been much considered in this
court. In the case Of Cooley vs. Board Of Wardens,
tions came directly before the court In refer
ence to the local laws OF the port OF Philadelphia
concerning pilots. IL was claimed that they constl-
tuted regulation OF commerce, and were therefore
void. The court held that they did come within the
meaning Ol the term 10 regulate commerce. but
that, until Congress made regulations concerning
pilots, the States were competent TO do 80. Perhaps
no more satisfactory solution has been given OF
TINS veXed question than the one furnished by the
court in that case. After showing that there are
some powers granted TO Congress which are exclu-
svc OF similar powers the States because they are
declared TO be and that other powers are necessa-
rly 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 az Wen as powers which, from their ma
ture can best be exercised 10y the STATE Legislatures
belongs Whatever subjects OF this power are In
.helr nature nauOua, or aunt OIL one UNIFORM sys.
TEN or plan OF regulation may Justly be said To he Of
such nature as 10 require exclusive legislation by
Congress" In the case Of Gilman Philadelphia,
Wall, 5l3, this doctrine Is realrmcd, and under Il
bridge across a stream naviglble from the ocean,
authorized 10y state law, was held TO he well author.
iLed IN the absence vi any legislation by Congress
affecting the matter In the case before ~ IL may be
sad That tax OF one dollar for passing through the
state OF Nevada, by stage coach or by railroad can
not sensbly ancct any function OF the government
or deprive citizen oil any valuable right But If the
state can tax railroad passenger dollar IL can
state can do this so can every state. And
thus one or more states, covering the only
practicable routes OF travel from the East 10
the West, or from the North 10 the south,
may totally prevent OF seriously binder all transpor
taton OF PASSENGER from one part OF the country to
the other But the principles cOntended for here may
DC found more clearly stated in the dissenting opinion
OF the Chef Justice va those and with direct
pertincncy 20 the case before US than anywhere
else After expressing his views fully In favor OF the
validity OF the tax, which he said had exclusive ref
erence 70 foreigners, so lar as those cases
ccned, he proceeds To say, for the purpose OF pre-
venting mlsapprehensi0n that so far as the tax
affected American citizens II could not, in his opinion.
be maintained. lie then adds:-"Livlng as we do
under common government, charged with the great
concern OF the whole Union, every citizen OF the
United states, from the most remote states Terri
torres ~ enlltcu 10 iree access not only TO the prn
cpal departments established at Washington, but
also to its Judicial tribunals and public o1lces
ia every state IN thc Union. For all the
great purposes Tor which the federal government was
formed we are one people, with one common cOun.
try. We are all citizens OF the United states, and
members OF the same community must have the right
TO pass and repass through every part Of II without
interruption a. freey az IN our state and bar
imposed by state Tor entering s territories har
Dors IL inconsistent with the rights which belong TO
citizens OF other States members OF the Union and
Aliu1A