The daily state chronicle. [volume] (Raleigh, N.C.) 188?-1891, 1890-08-16

II
privilege of selling or ofarino - ~ ~
l,na -. vl'lhers bearing particular brand anC
a+ben, l1' lilto North Carolina from an
o.nsr , state, IS tax on commerce ha
,,,"ss ,"oen Tue otates. Being tax on ..con
nelce among the several States,' the
poner 10 levy it must be denied t. :
J'alo' : on the reasoning Of Marshall. q
:. :. N McCuilugh vs. MARYLAND which
naa ever since the rendition of tbat
pI,l1lon been uniformly acoaiescad il
py 'he profession. It is there held that
sne power to tax involves the nowar -
taan oesIioy' ana therefore that its uncon
,:h' sloi1ea existence in the State is incom-
pallole with the power of the Federal
gosernment to regulate such eommt rce
- may perhaps be said that the arg,1.
@ nie1t GOES not apply to a case where fha
saAaVlon makes no attempt to discrini
naCe lhJudlciously against the nrodncto
y otner states, and that such i tho
case with the statute SUB LITE II !.
true that the North Carolina statuto
uoes tax all manufactured fertiIizar
onered for sale in the State whathar
manufactured there or elsewhere h1t
as as ls said by Bradley, J. in Robins ys
o4Ieipy, Taxing District, 40 U. S. 199
II y lmmaterlal that no Discrimination
. lnaae. Interstate commerce
cannot be taxed at all, even though the
same amount OF tax should be laid on
uolheStlc y, commerce. The question Of
tne equality Of taxation is in terms ey-
cluoed II we consider the statute from
Tue point OF view of section 10, for that
says tnat NO TAX or imposts shall be lev
ieu. IL seems equally immaterial with
reference to section S, for a tax must he
q regulation Of commerce if # n anT a.
gree mas the effect Of diminishing it's
Volumei and that must necessarily be il
a greater or less degree the result Of any
tdAatlon on an article whether it be- at
d discriminating or at an equal rate. In
either case 1t diminishes sales and there.
tore importation. The only commercial
case ID which the amount Of Importation
would not be reduced would be, were
state to tax its own productions
more largely than imported goods
but even that would be only
an apparent exception. The i'm
port would still have the direct
effect Of checking Importation, although
the State tax on its own productions.
having a still greater effect in reducing
tneir consumption might rain rather
than cOunteract the reduction OF im-
portations caused by the impost.
Leaving, however, this view drawn from
the express words of the constitution
and returning to Judge Marshall's cela
brated argument that the power to tax
includes necessarilythe power to destroy.
anu IS therefore inconsistent with the
power OF the United States to preserve
commerce between the States, it NAV be
remarked that if the powers are given
to state to tax all imports from other
States without control, provided equal
taxation We're levied upon the same ar
tlcles if produced or made in the State.
the state would practically have the pow
er to prohibit the introduction of any
article not made In the State.
North Carolina might tax the importation
ton OF manufactured goods Of certain
grades, and Massachusetts that Of cot
ton and tobacco. If this tax can be
sustained, it is certain that license tax
u these words would be unconstitu-
llonal mo manufactured cotton shall
be sold, or offered for sale in the State,
until the manufacturer or person import
ing the same shall first obtain license
therefor, &C., and paid tax Of five
hundred dollars" A similar tax upon
the different brands Of tobacco might
% levied III any State that does not man
lfacture tobacco. But it is needless to
illustrations which every one
2an supply for himself. 1t must be eyi-
lent that requirement Of equality of
5axation on the imported and home
article would be no protection against
such taxation as would seriously check,
f it did not destroy, commerce between
he States, and would impair, to the
point almost of rendering its benefits
the domestic good results of
he union of the States.
". Defendants contend that this
5axation can be sustained as a part of
he police power Of the State. Without
what is perhaps impossible
o accurately define what does and what
loes not come under the term police
power, it is evident that the taxation in
question does not come within the ordi-
nary use of the phrase. ''UnWholesome
5rades, operations offensive to the senses,
he deposits Of powder, the application
If steam power to propel cars, the
building with combustible materials,
md the burial of the dead may all be in
;erdicated by law in the midst Of dense
masses of population,' Kent. Cou 2,
by Miller J. in the Slaughter
House Gases 16 Wall So.
This is called the police power. Ibid.
f the legislature in question can prop
,rly be reformed to that power it will be
because the right to pass inspection
avs may deemed to have its foundation
Il the police power Of a State. Certain
y if It be anything but what the act
tself seems to contemplate, a tax on an
or privilege tax, it Is be-
cause it is used to secure an inspection
# the commercial fertilizer before they !
AN be sold in North Carolina. Such
ak is constitutional, but only within
he limits Of the constitution. 1t can
,nly be sustained to the extent that it |
5 absolutely necessary for the purpose
# paying the expenses of inspection.
We think that in this case the court |
night judiciously take notice Of the evil |
lent fact that five hundred dollars on a |
,rand of commercial fertilizer is a much |
arger sum than can be necessary for |
uch purpose. But the court is relieved |
rom all embarrassment in this respect |
y the fact that the act in question de- |
lares by necessary implication that the |