Joseph v. Randolph

SOMERVILLE, J". The question presented for decision is a constitutional one, involving the validity of an ’ act of the General Assembly of this State, entitled “An Act to require a person who employs, or in any way engages laborers in the counties of Dallas, Perry,” and other counties therein named, “for the purpose of removing said laborers from the State, to pay a license tax;” which act, as originally approved on January 22, 1879, designated the amount of such license at one hundred dollars.—Acts 1878-9, p. 205. It was amended December 8, 1880, so as to increase this license to two hundred and. fifty dollars.—Acts 1880-81, p. 162. It provides that “ no person, whether for himself or for other persons, shall be permitted to employ, engage, contract, or in any other way induce laborers to leawe the counties of Dallas, Perry, . . Montgomery . . for the pu/rpose of removing said laborers from this State, without first paying to each of said counties in which such person shall so operate a license tax of two hundred and fifty dollars, such license tax to be collected as other license taxes,” etc. It is insisted, among other things, that the plain intent and natural effect of this statute is to tax, by indirection, the constitutional right of the citizen to have free egress, at all seasonable times, by emigration from the State. If this view be .correct, it is clear that the' validity of the act can not be sustained. There can be no denial of the general proposition that every — 505 — Citizen of the United States, and every citizen of each State of the Union, as an attribute of personal liberty, lias the right, ordinarily, of free transit from, or through the territory of any. State. This freedom of egress or ingress is guaranteed to ail by the clearest.implications of the Federal, as well as of the State constitution. It has been said that even in England, whence our system of jurisprudence was derived, the right to personal liberty did not depend on any express statute, but “it was the birthright of every freeman.” — Cooley’s Const. Lim. 342. This -right was said by Sir William Blackstone to consist in “the power of locomotion, of changing situation, or of moving one’s person to whatsoever place one’s inclination may direct, without imprisonment or restraint, unless by due process of law.” — 1 Bl. Com. 134. For its summary vindication, when illegally molested, the writ of habeas corpus had its origin, and was established with magna charta.— Hurd on Habeas Corpus, 143. This liberty of inter-state transit, thus based on the assertion of personal liberty, is referable to many clauses of the Federal constitution. In Ward v. Maryland, 12 Wall. 418, 430, it was classed by Mr. Justice Glieford as one of “ the privileges and immunities of the citizens of the several States,” guaranteed to the citizens of each State by Art. IV., Sec. 2 of the constitution of the United States. In the Passenger Cases, 7 How. (U. S.) 283, it was recognized by a majority of the Supreme Court of the United States as a right protected by the commercial clause of the Federal constitution from hostile State legislation, and its existence was admitted by all, and denied by none. Mr. Justice WayNe said that no State had the right “ to tax a foreigner or person for coming into one of the United States.” “That,” he continued, “would be a tax or revenue act, in the nature of a regulation of commerce acting upon navigation,” and as such he thought it violative of the Federal constitution.—Passenger Cases, supra, 420. In Crandall v. State of Nevada, 6 Wall. 35, the entire court concurred in the view, that a capitation tax of one dollar, imposed by the legislature Of Nevada upon every person leaving the State, as a passenger by railroad, stage-coach or other mode of conveyance, was unconstitutional and void. The reason was, that it infringed the unquestionable right of every citizen to have free ingress and egress, to and from and through the States and Territories composing a common general government—a right fully recognized by all the judges as having an undoubted existence, although they differed' as to the particular ground upon which it could be rested.—Borer on Inter-State Law, 315. Our present State constitution contains an obvious recognition of the right under discussion in the declaration, that uemi — 506 — gration shall not be prohibited,” and in the fundamental maxim that “ all men are endowed .by their Creator with certain inalienable-rights, among which are “ life, liberty and the pursuit of happiness.”—Const. 1875, Decl. Rights, §§ 1, 31. The right of every citizen, or person to enjoy free egress from, or transit through the State, is, in our opinion, an undoubted constitutional right. The framers of the Federal constitution clearly intended that personal intercourse between the States should be, so far as practicable, as free as the transit of the ocean, and as unembarrassed as the commerce of the public seas. It must, therefore, remain unfettered and free, subject only to such legislative regulation as may' be imposed by the exercise of tli& police power of the States, or as it may be remotely affected by the legitimate exercise of the power of State taxation. Let us examine this act, so as to test it in the light of these two considerations. A legislative act is to/be interpreted according to the intention of the legislature apparent on its face. So the purpose and constitutionality of a statute, in whatever language it may be framed, “ must be determined by its natural and reasonable effect.”—Henderson v. Mayor, &c., New York, 92 U. S. 259; Chy Lung.v. Freeman, Ib. 275. Construing the statute now under consideration according to this rule, it can scarcely be sustained as an exercise, of the police power of the State. This power is generally said to extend to making regulations promotive of domestic order, morals, health and safety, having its just foundation in the public right of self-defense, audits origin in the maxim, Sicutere tuo ut alienum non lœdas.—Thorpe v. The Rutland, &c., R. R,. Co., 27 Vt. 149; The Amer. Union Tel. Co. v. The Western Union Tel. Co., 67 Ala. 26. This act has none of the characteristics of a law designed to regulate these or kindred subjects, which properly fall within the purview of domestic police. There corn, be nothing so i/>yjuriov,s or offensive in the aet of Ivvrimg a single unemployed lajborer, for one’s service, as to require police regulation by the State. Nor, very manifestly, is this statute designed to impose a mere occupation or business tax, which is always done either for purposes of revenue, or of police regulation.—Cooley’s Const. Lim. 596, (5th Ed.) p. 743. Under the general law, licenses are required only of such persons as engage in and carry on the business of certain vocations, professions and employments. Code, 1876, § 490. Single acts are not licensed, but only a series of acts prosecuted with the intention of “ reaping a profit or making a livelihood.”—Harris’ case, 50 Ala. 127; Weil’s case, 52 Ala. 19. Besides, an act for this purpose was manifestly fruitless, as one already existed, imposing a license tax — 507 — of one hundred dollars upon all persons undertaking “ to act as an emigration agent,” in the county of Montgomery, and other counties designated, which had been in force about two years when the statute in question was enacted.—Acts 1876-7, p. 225. If we could see that the legislative purpose was merely to impose a license tax upon persons engaged in the business or occupation of hiring persons to leave the State, we would not be justified in declaring the law violative of the constitution, because it incidentally affected the right of free egress from the State. A constitutional right is often affected in this way by the taxing power, without a repugnancy which will vitiate the tax. In Osborne v. Mobile, 16 Wall. 479, it was accordingly held that an annual license tax imposed by the city of Mobile on an express company, engaged in that city in carrying on an inter-state commerce, was not repugnant to the constitution as a regulation of commerce. So a tax imposed by the legislature of Pennsylvania upon the gross receipts of railroad and canal companies, doing business betwmen that and other States, has been sustained as a proper exercise of the taxing powder.-State Tax on Railway Cross Receipts Case, 15 Wall. 284. A constitutional right, however, conferred by the Federal constitution, as such, can not be taxed by the States, either directly or indirectly, because the power to tax carries with it the power to defeat and render useless, if not to destroy. Pollard v. Stale, 65 Ala. 628; McCullough v. Maryland, 6 Wheat. 316. A law, as we have seen, would certainly be void which exacted tribute of a citizen as the price of crossing a State line. Does the license in question operate manifestly as a tax, by indirection, upon the right of the citizen to leave the State, or does it so burden this right as to effectually impair it? No principle of construction is sounder than the common sense and cardinal rule; that “ what can not be done directly can not be done indirectly.”—Ex Parte Hardy, 68 Ala. 303Cummings v. Missouri, 4 Wall. 277. If the law should act upon any other theory, it would subject itself to the just challenge of catching at shadows and not substances. Hence, a constitutional right, though subject to regulation, “can not be impaired, or destroyed, under the device or guise of being regulated.”—South & North Ala. R. R. Co. v. Morris, 65 Ala. 193. It is easy to see the application of this principle in construing the statute now under review. Every person, including every laborer, has the right of egress from the State' — the right to emigrate at his option, and in the unobstructed exercise of his free will. lie has, therefore, the clear right to contract to exercise such right, because it may become a necessary and — 508 — only means of its successful exercise. If the right itself exists and is lawful, it can not become unlawful to agree to exercise it. It may be said, however, that no license is required of the laborer to contract, but only of any one else to oont/mct with him. The fallacy of the suggestion is patent, as it requires at least two pa/rties to every contract. A law 'forbidding the purchase of any commodity is in effect a law'to prohibit its sale. In Brown v. Maryland, 12 Wheat. 419, it was said that a tax on the sale of an article, imported for sale, was a tax on the article itself. So it was decided in Welton v. State of Missouri, 91 U. S. 215, that a license tax required for the sale of goods was, in effect, a tax on the goods themselves. The license in that case was sought to be sustained as a tax upon a calling or occupation. In like manner a tax upon passenger carriers of a specific sum for each passenger transported has been adjudged to be a tax upon the passengers.—Passenger Cases, 7 How. (U. S.) 283; Crandall v. Nevada, 6 Wall. 35. The legislative intent then is plain upon the face of the act. Its purpose is to prevent free egress of laborers, from the counties designated, out of the State. ' There is no tax upon the right of hiring or inducing them to go elsewhere. Rut a tax of two hundred and fifty dollars, in the form of a license, is exacted of every one who' makes a contract with a laborer, or otherwise offers him an inducement to leave the State, whether for the service of the particular employer or hirer, or for that of other persons. The license required might thus amount to twice or three times the annual value of the hireling’s labor. It requires no great draft upon judicial knowledge to declare that such a tax is in its natuvreprohibitory, and its natural effect, pursuant to its obvious purpose, is to seriously clog and impair the laborer’s right of free emigration. —Ex Parte Burnett, 30 Ala. 461. Construing the act under consideration by the test of these principles, we do not see how it can be sustained. It must be pronounced void as an indirect tax xipon the citizen’s right of free egress from the State, operating to hinder the exercise of his personal liberty, and seriously impair his freedom of emigration.—Webber v. Virginia, 103 U. S. 344; Vines v. State, 67 Ala. 73; Passenger Cases, supra. There are other objections urged to this act besides the one we have'above considered. It is ably assailed as a species of vicious class legislaUon, applicable alone to laborers and to no other persons in the community. It is also attacked as being repugnant to the Fourteenth Amendment of the Federal Constitution, the ground of objection being that it is a denial by the State to laborers, as a class, of “ the equal protection of the laws.” What force there m'ay be in these objections we need — 509 — not consider, as. it is rendered entirely unnecessary in view of the conclusion to which we have come, pronouncing the law void for other and distinct reasons. The judgment of the City Oourt is reversed, and the cause remanded for further proceedings in accordance with the views expressed in this opinion.