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measure a legitimate property tax by receipts which in part come from interstate
commerce, which could not in itself be taxed.'' ^ The earnings of a nonresident
express company carrying goods between two points within the state over a
route incidentally traversing a portion of another state, so far as they are de-
rived from the carriage within the state, may be included in the gross receipts,
upon which the tax imposed by ]\linn. Rev. Laws, 1905, ch. 11, is based, without
unconstitutionally burdening interstate commerce, or denying due process of
law."" The Illinois Central Railroad Charter requiring the company to pay to
the state an amount equal to seven per cent of its gross receipts in lieu of taxes,
was a mere charter method of fixing an equivalent for a tax that would other-
wise ordinarily be levied on the property of the corporation; and hence, not-
withstanding it required the payment of such percentage on the receipts of the
railroad company's charter lines from interstate commerce, was not invalid as

71. Gross revenue tax in addition to not be construed, for the purpose of sav-

property tax. — A nonresident express ing its constitutionality, as referring only

company whose receipts are largely de- to the receipts from commerce wholly

rived from interstate commerce and from within the state. Meyer v. Wells, Fargo

investments in bonds and land outside «& Co., 223 U. S. 298, 56 L. Ed. 445, 32

the state can not validly be subjected to S. Ct. 218.

the "gross revenue tax" exacted by Okla. 72. Gross revenue tax in lieu of all
Laws 1910. ch. 44, from public service property tax.— The tax in the present
corporations, "which shall be in addition case is not like those held invalid in the
to the taxes levied and collected upon Galveston Case and the Oklahoma Case,
ad valorem basis upon the property and being an addition to other state taxation
assets of such corporation," equal to such reaching the property of all kinds of
proportion of a specified percentage of the express company. The tax to be col-
its gross receipts from every source lected in part from the earnings of in-
whatsoever as the portion of its business terstate commerce was part of a scheme
done within the state bears to the whole of taxation seeking to reach the value of
of its business. Meyer v. Wells, Fargo the property of such companies in the
& Co., 223 U. S. 298, 56 L. Ed. 445, 32 state, measured by the receipts from busi-
S. Ct. 218, following Fargo v. Hart, 193 ness done within the state. The statute
U. S. 490, 48 L. Ed. 761, 24 S. Ct. 498; was not aimed exclusively at the avails
Galveston, etc., R. Co. v. Texas. 210 U. of interstate commerce. Philadelphia,
S. 217, 52 L. Ed. 1031, 28 S. Ct. 638. etc., Steamship Co. v. Pennsylvania, 122

The "gross revenue tax" exacted from U. S. 326, 30 L. Ed. 1200, 7 S. Ct. 1118,

a nonresident express company by Okla. but, as in the Maine Case, was an at-

Laws 1910, ch. 44, "which shall be in tempt to measure the amount of tax

addition to the taxes levied and collected within the admitted power of the state

upon ad valorem basis upon the prop- by income derived, in part, from the con-

ertv and assets of such corporation" and duct of interstate commerce. United

equal to such proportion of a specified States Exp. Co. v. Minnesota, 223 U. S.

percentage of its gross receipts from 335. 56 L. Ed. 459, 32 S. Ct. 211.
every source whatsoever as the portion 73. United States Exp. Co. v. Minne-

of its business done within the state sota, 223 U. S. 335, 56 L. Ed. 459, 32 b.

bears to the whole of its business, can Ct. 211.



3563



TAXATION.



§§ 3948-3949



an attempt to regulate or impose a tax on interstate commerce itself."'*

Receipts of Railroad from Interstate Express. — The Tax Law of New

.York of 1896 provides for a franchise tax to be assessed on the gross earnings
of a transportation corporation within the state, which shall include its gross
earnings from its transportation or transmission business originating and ter-
minating within the state, but shall not include earnings derived from business
of an interstate character. Where it appeared that a domestic railway company's
assessment under such section included receipts from express business beginning
in the state and transferred within the state for delivery in another state, or
shipped outside the state for delivery within the state, such business being in-
terstate commerce, and not taxable, the corporation was entitled to a revision of
its assessment.'''^

§§ 3949-3950. Tax on Passengers and Freight— § 3949. Passen-
gers. — It has been held, that a state statute imposing a tax upon a passenger for
the privilege of leaving the state, or passing through it by the ordinary mode of
passengers travel, is not in conflict with the provision of the United States con-
stitution conferring on congress the power to regiflate commerce, in the absence
of any legislation by congress affecting the matter."*^ While on the other hand



74. State v. Illinois Cent. R. Co., 246
111. 188, 93 N. E. 814.

75. Receipts of railroad from interstate
express. — New York, etc., R. Co. v. Mil-
ler, 88 N. Y. S. 373, 94 App. Div. 587.

Where the entire business of a domes-
tic corporation consists in the transpor-
tation of grain and other products from
ports outside of the state to ports and
places in the state, and of personal prop-
erty from ports in the state to ports in
other states, and its entire gross receipts
from its business are derived from such
transportation, and not otherwise, its
earnings are "earnings derived from busi-
ness which is of an interstate character"
within Laws 1894, p. 1303, c. 562, § 11;
Laws 1896, p. 857, c. 908, § 184, which
forbid the imposition of any tax on the
business of interstate commerce, and are
not subject to the franchise tax imposed
by Laws 1880, p. 766, c. 542, § 6; Laws
1881, p. 484, c. 361, § 6; Laws 1896, p.
857, c. 908, § 184. Order, 82 N. Y. S.
582, 84 App. Div. 174, affirmed in Con-
necting Terminal R. Co. v. Miller, 70 N.
E. 472, 178 N. Y. 194.

76. Tax on passengers. — Crandall v.
Nevada (U. S.), 6 Wall. 35, 18 L. Ed.
744, cited in Case of State Freight Tax
(U. S.), 15 Wall. 232, 21 L. Ed. 146;
Railroad Co. v. Maryland (U. S.), 21
Wall. 456, 22 L. Ed. 678. See, also, Pick-
ard V. Pullman Southern Car Co., 117 U.
S. 34, 48, 29 L. Ed. 785, 6 S. Ct. 635.

A state can not impose a tax on the
movement of persons or property from
one state to another. Railroad Co. v.
Maryland (U. S.), 21 Wall. 456, 22 L.
Ed. 678. The cases of Crandall v. Ne-
vada (U. S.), 6 Wall. 35, 18 L. Ed. 744,
and Case of State Freight Tax (U. S.),
15 Wall. 232, 21 L. Ed. 146, cited and
affirmed.



The charter of the Baltimore and Ohio
Railroad Company for constructing and
working a branch railroad between Bal-
timore and Washington contained a stip-
ulation that the company at the end of
every six months should pay to the state
one-fifth of the whole amount received
for the transportation of passengers.
This charter was accepted and complied
with for many years. Held, that this
stipulation was not repugnant to the
commerce clause of the constitution of
ihe United States. Railroad Co. v. Mary-
land (U. S.), 21 Wall. 456, 22 L. Ed. 678.

In 1865 the state of Nevada levied "a
capitation tax of one dollar upon every
person leaving the state by any railroad,
stage coach, or other vehicle engaged or
employed in the business of transport-
ing passengers for hire," to be paid by
the proprietors or corporations so en-
gaged. Held, that such tax was uncon-
stitutional, on the ground that it would
interfere with the right of the general
government, under the federal constitu-
tion, to the free passage of its officers,
agents, and troops over every part of the
national territory. Crandall v. Nevada
(U. S.), 6 Wall. 35, 18 L. Ed. 744.

The tax under Act March 27, 1843, No.
81, providing a fund for the Charity Hos-
pital of New Orleans, being imposed ex-
clusively on the passengers, and not on
the officers and crew of the vessel, is
not a regulation of commerce; nor a
usurpation of the power to "regulate
with foreign nations and among the sev-
eral states," exclusively vested in con-
gress (U. S. Const., art. 1. § 8); it is not
inconsistent with any law of congress
logulating commerce; nor prohibited by
.•\ct Cong. April 8, 1812, § 1, that act hav-
ing no further application since the ad-
mission of Louisiana into the Union.
State V. Fullcrton (La.), 7 Rol). 210.



§ 3949



CARRIERS.



3564



it is held that interstate transportation of passengers is beyond the reach of a
state legislature, and state taxation of persons passing from one state to another,
or a state tax upon interstate transportation of passengers, is prohibited
by the constitution of the United States because a burden upon itJ" A state
statute imposing taxes upon passengers on ships arriving in the ports of the
state from foreign ports is a regulation of foreign commerce, which is exclusively
vested in congress, and is therefore void.'^ And such tax is not relieved from
this unconstitutional objection by saying in the title of the statute that it is in
aid of a law called an inspection law, which authorizes an inspection of passen-
gers with reference to their being persons liable to become a public charge, crim-
inals, paupers, etc."^ A tax upon passengers carriers of a specific amount for each
passenger carried is held to be a tax on the passengers. ^'^



77. Railroad Co. v. Husen, 95 U. S.
465, 24 L. Ed. 527; Henderson v. New
York, 92 U. S. 259, 23 L. Ed. 543; Chy
Lung V. Freeman, 92 U. S. 275, 23 L.
Ed. 550; Cook v. Pennsylvania, 97 U. S.
566, 24 L. Ed. 1015; Pickard v. Pullman
Southern Car Co., 117 U. S. 34, 48, 29
L. Ed. 785, 6 S. Ct. 635. See Case of
State Freight Tax (U. S.), 15 Wall. 232,
21 L. Ed. 146; Gloucester Ferry Co. v.
Pennsylvania, 114 U. S. 196, 29 L. Ed.
158, 5 S. Ct. 826.

In Henderson v. New York, 92 U. S.
259, 23 L. Ed. 543, the statute of New
York was defended as a police regulation
to protect the state against the influx of
foreign paupers; but it was held to be
unconstitutional, because its practical re-
sult was to impose a burden upon all
passengers from foreign countries. So
in the case of Chy Lung v. Freeman, 92
\I . S. 275, 23 L. Ed. 550, where the pre-
tense was the exclusion of lewd women.

Act 1864, imposing on any carrier of
passengers across any portion of the
state a tax of ten cents for each pas-
senger, except soldiers and sailors of
the L'nited States, in so far as it oper-
ates upon persons entering into, depart-
ing from, or passing through the state, is,
in effect, an act regulating commerce
between this and other states, and is
therefore void, as conflicting with the pro-
visions of the federal constitution con-
ferring upon congress the power to reg-
ulate commerce among the several states.
Clarke v. Philadelphia, etc., R. Co. (Del.),
4 Houst. 158.

78. Passenger Cases (U. S.), 7 How.
283, 12 L. Ed. 702; Head-Money Cases,
112 U. S. 580, 28 L. Ed. 798, 5 S. Ct. 247;
Pickard v. Pullman Southern Car Co.. 117
U. S. 34, 29 L. Ed. 785, 6 S. Ct. 635; Hen-
derson V. New York, 92 U. S. 259, 23 L.
Ed. 543, reviewing and criticising Passen-
ger Cases (U. S.), 7 How. 283, 12 L.
Ed. 702.

A state can not require a sum to be
paid for each passenger landed. Passen-
ger Cases (U. S.), 7 How. 283, 12 L. Ed.
702; Machine Co. v. Gage, 100 U. S. 676,
25 L. Ed. 754.

A statute which imposes a heavily bur-



densome condition upon a shipmaster as
a prerequisite to landing his passengers,
and allows him the alternative of paying
a small sum for each one landed, is a
regulation of commerce, and therefore
void. What may be done by a state to
protect itself from the influx of paupers
and convicted criminals, in the absence
of legislation on the subject by congress,
is left undecided. Henderson v. New
York, 92 U. S. 259, 23 L. Ed. 543; Ma-
chine Co. V. Gage, 100 U. S. 676, 25 L.
Ed. 754. See People v. Compagnie Gen-
erale Transatlantique, 107 U. S. 59, 27
L. Ed. 383, 2 S. Ct. 87.

In Henderson v. New York, 92 U. S.
259, 23 L. Ed. 543, where the owners of
vessels from a foreign port were required
to give a bond, as security, that every
passenger whom they landed should not
become a burden on the state, or pay for
every such passenger a fixed sum, it was
held to be in effect a tax of that sum on
the passenger, however disguised by the
alternative of a bond which would never
be given.

In the case of Henderson v. New York,
92 U. S. 259, 23 L. Ed. 543, a similar
statute of Louisiana was held void for
the same reason. And in the case of
Chy Lung V. Freeman, 92 U. S. 275, 23
L. Ed. 550, a statute of California on the
same subject was also held void, because
it "invades the right of congress to reg-
ulate commerce with foreign nations."
Head-Money Cases, 112 U. S. 580, 28 L.
Ed. 798, 5 S. Ct. 247.

79. Henderson v. New York, 92 U. S.
259. 23 L. Ed. 543; Chy Lung v. Free-
man, 92 U. S. 275, 23 L. Ed. 550; People
V. Compagnie Generale Transatlantique,
107 U. S. 59, 27 L. Ed. 383, 2 S. Ct. 87.

80. Passenger Cases '(U. S.), 7 How.
383, 12 L. Ed. 702; Crandall v. Nevada
(U. S.), 6 Wall. 35, 18 L. Ed. 744, and
Henderson v. New York, 92 U. S. 259,
23 L. Ed. 543; Telegraph Co. v. Texas,
105 U. S. 460, 26 L. Ed. 1067; Case of
State Freight Tax (U. S.), 15 Wall. 232,
21 L. Ed. 146; Pickard v. Pullman South-
ern Car Co., 117 U. S. 34. 48, 29 L. Ed.
785, 6 S. Ct. 635.



3565



TAXATION.



§ 3949



Tax on Passengers but Not on Vehicles.— The act of the general assembly
of Ohio of March, 1834, assessing tolls upon passengers carried by mail coaches
in Ohio, is constitutional, since not a tax upon the coach itself .^i

Condition in Charter of Railroad.— The effect of a condition in the charter
of a railway company that the company shall pay over to the state a certain per-
centage of all moneys received for the transportation of passengers, is not to im-
pose a capitation tax, or a tax upon the passengers' right of transit through the
state. It operates only as a tax imposed upon the company, with its consent,
and therefore does not violate any provision of the constitution of the United
States. *2 \ clause in the charter of a railroad company, providing that all
tonnage of whatsoever kind or description, except the ordinary baggage of pas-
sengers, carried or conveyed on said railroad, in each and every year, shall be
subject to a toll or duty, for the use of the commonwealth, of three mills per
ton per mile, is simply a mode of taxing the company according to the magni-
tude of its business, and is not intended as a tax on commerce. Such a tax is
not in violation of the provisions of the constitution of. the United States that
"congress shall have exclusive power to regulate commerce with foreign nations,
and among the states," and prohibiting the states, without the consent of con-
gress, from laying duties on imports and exports. ^^

Transported by Foreign Corporations. — The Act of New Jersey of March
28, 1862, relating to taxes, provided that foreign carriers regularly doing business
in this state should pay a certain transit duty on every passenger and ton of goods
transported over the territory of the state, and not exclusively within its limits.
This provision was in conflict w^ith the clause of the constitution declaring that
congress shall have power to regulate commerce among the several states.^-*

Tax on Alien Passengers. — State statutes imposing taxes upon alien pas-
sengers are invalid. ^^ Act April 26, 1862, being an act to discourage immigra-
tion of the Chinese into California, is not within the power of the state to exclude
paupers and other obnoxious persons, it not appearing that the Chinese are



81. Tax on passengers but not on ve-
hicles.— State z'. Neil, 7 O. 132, 28 Am.
Dec. 623, reversed in 3 How. 720, 11 L.
Ed. 800.

82. Condition in charter provision. —
State V. Baltimore, etc., R. Co., 34 Md.
344.

83. Pennsylvania R. Co. v. Common-
wealth (Pa.). 3 Grant Cas. 128.

84. Transported by foreign corporations,
—Erie R. Co. v. State, 31 N. J. L. 531,
86 Am. Dec. 226.

Section 10 of the Tax Act of March 28.
1862. taxing foreign corporations doing
business in New Jersey by making them
pay a duty upon every passenger and ton
of freight brought into or carried out of
the state, is not in violation of the provi-
sions of the constitution of the United
States giving congress the power to reg-
ulate commerce and forbidding states to
tax imports or exports. State ?'. Dela-
ware, etc., R. Co., 30 N. J. L. 473.

85. Tax on alien passengers. — Smith v.
Turner (U. S.), 7 How. 283, 12 L. Ed.
702.

A state tax on immigrants is void. Peo-
ple V. Downer, 7 Cal. 169; Mitchell v.
Steelman, 8 Cal. 363.

Statutes imposing taxation upon alien



passengers arriving in ports of the United
States are void. Passenger Cases (U. S.),
7 How. 283, 12 L. Ed. 702.

The statute of New York of May 31,
1881, imposing a tax on every passenger
from a foreign country landing in the
port of New York who is not a citizen of
the United States, and holding the vessel
which brings him liable for the tax, is
a regulation of commerce. The tax is
not relieved from this constitutional ob-
jection by calling in an inspection law.
People v. Compagnie Generale Transat-
lantique, 107 U. S. 59, 27 L. Ed. 383, 2
S. Ct. 87, affirming 10 Fed. 357.

Act 1881, providing for inspection of
persons and effects of immigrants arriving
by vessel at the port of New York from
any foreign country, is not, within the
constitution of the United States, art. 1,
§ 10, clause 2, an inspection law, for
which the state may lay duties on im-
ports or exports: and therefore Laws
1881, c. 432, §. 590, entitled "An act to
raise money for the execution of the in-
spection laws of the state of New York,"
which levies a duty on every alien com-
ing from a foreign port to the port of
New York, is a regulation of interstate
commerce, and void. People z'. Edye (N.
Y.), 11 Daly 132.



^§ 3949-3950



CARRIERS.



3566



such. ^6 But the imposition of a tax upon immigrant agents, is not a regulation
of interstate commerce. ^'^

Power of Congress to Tax Alien Passengers.— The Act Cong. Aug. 3,
1882, entitled "An act to regulate immigration," imposes on the owners of vessels
who shall bring passengers from a foreign port into a port of the United States
a duty of fifty cents for every such passenger not a citizen of the United States,
and is not a tax subject to the limitations imposed by the constitution on the
general taxing power of congress. *^^'* The act of congress authorizing the levy
of a tax on passengers is not in violation of the treaties in existence before the
act was passed between the United States and the various foreign countries, of
which the owners of the vessels bringing the passengers were citizens or sub-
jects, which provided for freedom of commerce or navigation, since it applies
to citizens of the United States and their vessels as well.'^'-^

Passengers on Ships. — A state law, which requires the master of a vessel,
engaged in foreign commerce, to pay a certain sum to a state officer on account
of each passenger brought from a foreign country into the state, is also void.'"^

§ 3950. Freight. — A statute of a state imposing a tax upon freight taken
up within a state and carried out of it, or taken up without the state and brought
into it, is repugnant to the constitution, providing that congress shall have power
to regulate commerce with foreign nations and among the several states. '^^
Where a tax demanded by a state statute is imposed, not upon the company, but
upon the freight carried and because carried, so far as it afifects commodities
transported through the state, or from points without the state to points within
it, or from points within the state to points without it, the act is a regulation of in-
terstate commerce.-'- If the subjects of taxation can be separated so that that



86. The act of California. — Lin Sing v.
Washburn, 20 Cal. 534.

Section 2955 of the political code of
California, so far as it requires the pay-
ment of seventy cents for each passenger
inspected to ascertain if he is afflicted
with leprosy, coming into the United
States by sea, and imposing a fine for
nonpayment upon the owners and con-
signees of the vessel bringing the pas-
sengers, is unconstitutional and void.
Bunker v. Pacific Mail Steamship Co., 16
Fed. 344.

87. Tax on immigrant agent. — Williams
V. Fears, 110 Ga. 584, 35 S. E. 699, 50 L.
R. A. 685, affirmed in 179 U. S. 270, 45
L. Ed. 186, 21 S. Ct. 128.

A burden on interstate commerce is
not imposed by Laws Ga. 1898, p. 21, par.
10. § 4, imposing a license tax on emi-
grant agents engaged in the business of
hiring persons to labor outside the state.
Judgment, 110 Ga. 584, 35 S. E. 699, 50
L. R. A. 685, affirmed in Williams v.
Fears, 179 U. S. 270, 45 L. Ed. 186. 21
S. Ct. 128.

88. Power of congress. — Eyde v. Rob-
ertson, 112 U. S. 580, 28 L. Ed. 798, 5 S.
Ct. 247.

Act Cong. Aug. 3, 1882 "to regulate im-
migration," which imposes on the owners
of steam or sailing vessels who shall
bring passengers from a foreign port into
a port of the United States a duty of fifty
cents for every such passenger not a citi-
zen of this country, to constitute a fund
"to defray the expense of regulating im-



migration under this act, and for the
care of immigrants arriving in the United
States, for the relief of such as are in dis-
tress," etc., is a valid exercise of the
power to regulate commerce with foreign
nations. Edye v. Robertson, 112 U. S.
580, 28 L. Ed. 798, 5 S. Ct. 247.

89. Edye v. Robertson, 18 Fed. 135, 21
Blatchf. 460.

90. Tax on each passenger carried. —
Gilman v. Philadelphia (U. S.). 3 Wall.
713, 18 L. Ed. 96; Passenger Cases (U.
S.), 7 How. 283, 12 L. Ed. 702.

91. Freight. — Case of the State Freight
Tax (U. S.), 15 Wall. 232, 21 L. Ed. 146,
reversing Commonwealth v. Erie R. Co.,
(12 Pa. 286, 1 Am. Rep. 399.

A cargo in interstate commerce is not
subject to taxation by a state. Ex parte
Eaglesfield, 180 Fed. 558.

92. Case of the State Freight Tax (U.
S.), 15 Wall. 233, 21 L. Ed. 146; cited in
Telegraph Co. v. Texas, 105 U. S. 460, 26
L. Ed. 1067; Wabash, etc., R. Co. v. Illi-
nois, 118 U. S. 557, 30 L. Ed. 244, 7 S.
Ct. 4; Bowman v. Chicago, etc., R. Co.,
]25 U. S. 465, 31 L. Ed. 700, 8 S. Ct. 689,
1062; Ratterman v. Western Union Tel.
Co., 127 U. S. 411, 32 L. Ed. 229. 8 S. Ct.
1127; Fargo v. Michigan, 121 U. S. 230,
30 L. Ed. 888, 7 S. Ct. 857; Gloucester
Ferry Co. v. Pennsylvania, 114 U. S. 196,
29 L. Ed. 158, 5 S. Ct. 826; Osborne v.
Mobile (U. S.), 16 Wall. 479, 21 L. Ed.
470; Passenger Cases (U. S.), 7 How. 283,
12 L. Ed. 702.

A statute of Pennsylvania taxing the



3567 TAXATION. § 3950

which arises from interstate commerce can be distinguished from that which
arises from commerce wholly within the state, the court will act upon this dis-
tinction, and will restrain the tax on interstate commerce while permitting the
state to collect that arising from commerce solely within its own territory.'*-^ But
it has been held that a state law requiring transportation companies having lines
within the state to pay a tax upon freights is not void for infringing the power
to regulate commerce between the states conferred by the United States con-
stitution upon congress.''"*

Tax on Freight and Tax on Receipts Disting-uished.— A tax by a state
upon freights carried between states differs from a tax upon the receipts from
such transportation, since the former is a tax because of the carriage, and the
latter is upon the property of the company. ^^

Tax on Goods before Entering Commerce.— Act April 8, 1861 (P. L. 258),
punishing the buying without a license of certain articles of produce in Berks and
Franklin counties, "with intent to send the same for sale or barter to any other
market out of said counties," is not in violation of the interstate commerce
clauses of the constitution ; the license fee, at most, being only a tax on the arti-
cles before they begin to move as an article of trade from one state to another.
Even if the act were obnoxious to the interstate commerce clauses, in the case of
a purchase of goods to be sold in another state it would still be valid as to busi-
ness wholly within the state. '•^*'

After Property Has Ceased to Be Interstate Commerce. — After prop-
erty has left the channels of commerce and obtained a situs in the state, it is sub-



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