Year: 1869

mage Tax Gases The Law Sustained by the


COurt-JudRe Read Dissents.


The following are the main points in the deci-
sion made by Judge Agnew, during the May
term of the Supreme Court, affirming the Ton
mage Tax law


The question before us arises under the act of
the Legislature of Pennsylvania approved Au-
gust 25 1864, entitled IAN act to provide addi-
tional revenue for the use of the Common
wealth, T. /. 1864, p. 9SS. II is solely n revenue
law, has no other purpose, and is in substance
thiR-That the financial officers of all railroad,
steamboat, canal, slack-water navigation and
transportation companies excepting turnpike,
plank road and bridge companies), upon
whose works freights are transported by
themselves or others, for freight or tolls,
thall make quarterly returns to the Auditor
General, stating fully and particularly
the number of tons of freight carried
over or upon their works and shall pay to the
State Treasurer, for the use of the Common
wealth, tax on each 2000 pounds of freight so
carried at rates designated in the act, and
founded on classification of the treights, so Us
to distinguish between the heavy and bulky and
the lighter kinds, and thus to graduate the tax
equitably in order to meet the greater expense OF
transportation. The act also confines the tax
upon freight carried over continuous lines by
several companies to single one to be desig-
mated by the Auditor-General, so as not to
charge the tax twice on freights carried over the
same line of improvements.


The corporations, defendants in the foregoing
cases, dispute the validity of this tax, alleging
that it is regulation of commerce, or an i'm
post act beyond the power of the State.


In speaking of that immense mass of legisa-
tiOn which embraces everything within the ter
ritory of a State not surrendered to the General
Government, all of which can be most advanta-
geously exercised by the States themselves"
Chief Justice Marshall inspection laws,
quarantine laws, health laws of every descrip-
ton, as well as laws for regulating the internal
commerce of State, and those which respect
turnpike roads, ferries, ETC., are competent parts
. -. AY,Ns,2 tl,n
most important State rights, and one directly
connected with the question before u.s. is that
of eminent domain. This undoubted power has
been exercised in the improvement OF navgable
streams, and in building and establishing ferries
over them and in the construction OF roads,
turnpikes, canals, and railroads; and has been
repeatedly recognized in authoritative decisions.


Under this invaluable power the States have
built up network of railways and canals and
have improved natural channels through which
the commerce of the whole Union is coursing,
like the life-blood throughout the whole natural
system. And who can doubt that the State has
a right to compensation for this expenditure of
means and the benefit she has conferred on all
who use her works They were built by her
self, or under her franchises and the right to
exact tolls, charges, and fares for their use is
necessary consequence OF her power to construct
them.


Taxation is an independent power of the
State both fundamental and vital; and un-
limited except by the express prohibitions of





when it infringes directly on the exercise of
Federal power. The works over which this
tonnage is transported owe their existence to
the State. That which is transported is carried
by the permission of the State, contained in the
charters granted by the sovereign power. The
business done upon them was the object and is
the result of the exercise of that sovereignty
1t bears no touch of the Federal power. 1t is
forbidden by no prohibition of State power 1t
owes its existence to no purpose and no law of
Congress, and was not created to carry out any
of the powers of the Union. 1t being an un-
doubted creation of the State, and a subject of
State sovereignty, it is therefore clearly within
the State power of taxation. Hence it is imma-
terial how the subject of taxation is measured,
by weight or by enumeration.


The act we are now considering is in no sense
a regulation of commerce or an attempt to tax
interstate commerce. 1t is the lawful exercise
of State power over creations and uses brought
into existence by her own authority; proper
tax upon the use of the franchises grantees by
her for the benefit of all alike who employ them,
and in consideration of valuable privileges and
facilities furnished to them by her authority and
permission. The subject is wholly internal,
and the imposition equal in its operation and
equitable in its distribution; while to exempt
freight passing out or coming into the State
from its operations would be unjust discrimina-
tion against our own citizens aud in favor of
the citizens of other States. The case is not
rested on the debatable ground of State power
to regulate interstate commerce in the absence
of Congressional legislation on the same subject
but on the admitted right of a State to execute
its power of eminent domain in the construction
of works for the transportation of freight and
passengers and to legislate and tax their use by
those who choose to employ them, as undoubted
subjects of her domestic affairs and of that in
ternal commerce which she can rightfully con-
troll SO long as she does not fraudulently eXer.
else her power to the injury of the citizens of
other States.


For these reasons the judgments in all the
cases are reversed, and writs of rentre tdctdS de
moro awarded in each case.


Read, d., dissented.