Ex parte Crandall

Opinion by Lewis, C. J., full Bench concurring. It is provided by the 90th section of the Revenue Act of 1865, that “ there shall be levied and collected a capitation tax of one dollar upon every person leaving this State by any railroad, stage coach or other vehicle engaged or employed in the business of transporting passengers for hire, and every person, Arm, corporation or company owning or possessing or having the care or management of any railroad, stage-coach or other vehicle engaged or employed in the business of trans — 300 — porting passengers for hire, shall pay in the manner as herein provided to the Sheriff, as ex officio License Collector of the several counties within this State, the said tax of one dollar for each and every person so conveyed or transported from this State.” Section 91 declares that “for the purpose of collecting said tax every such person, firm, corporation or company, their agent or 'agents, shall make a statement under oath to the Sheriff or other officer authorized to collect said tax, of the number of passengers so conveyed or transported from the State by any railroad, stage-coach or other vehicle owned by him or them, or under his or their control or charge, on the first Monday of each month for the preceding month, and shall pay over to the Sheriff or other officer the capitation tax as provided in this Act for each passenger so conveyed or transported, which tax shall be paid in the county from which such passenger shall be conveyed or transported.” For the purpose of enforcing the observance of these provisions of the law, it is made the duty of all Justices of the Peace, to whom complaint may be made, to issue a citation ordering any party or parties refusing to make the statement required by section 91, to appear forthwith before the Justice issuing such citation, and answer upon oath concerning the number of passengers conveyed or transported out of the State from that point or place for the preceding month; and such Justices are also authorized, in case of refusal so to answer, to commit such person or persons for contempt. The petitioner being the agent of the Pioneer Stage Company at Carson City, was required by the Sheriff of Ormsby County to make statement of the number, of passengers conveyed out of the State by that company in the month of April, A. D. 1865. Having refused, the proper proceedings were had, a citation issued, and upon his refusal to answer before the Justice, he was regularly committed for contempt, and he now appears before this Court upon habeas corpus, demanding his discharge upon the ground that that portion of the revenue law levying this tax is unconstitutional and void. All other questions being expressly waived by counsel, the constitutionality of the law alone will receive our consideration. — 301 — Questions as to the relative powers of the General Government, and the several States have, from the foundation of the Union, been as prolific in forensic discussions and judicial investigation as in political divisions. And no feature in the history of those controversies is more prominent than the open reluctance which the State Courts have ever manifested in deciding against the authority of the States. "Whilst in many cases, perhaps, political sentiments may have given color to their decisions, yet it must be acknowledged that there are weighty reasons in support of the general policy which they have pursued upon such questions. A proper respect for the opinions of those composing the co-ordinate branches of the Government is often in itself sufficient to outweigh a doubtful opinion entertained by the Court. The fact also that no appeal can be taken from the decision of the highest Court of a State in questions of this character, where its decision is against the authority of the State, and in favor of the General Government, is certainly no insignificant consideration, neither should the necessities of the State, the nature of the authority exercised, nor the object sought to be attained be overlooked. If the authority exercised, or the laws enacted be dictated by a wise policy or an imperious necessity, and the welfare or safety of her people is promoted thereby, the Court which would be reluctant in depriving her of the one, or annulling the other, should need no apology. Nor have the considerations favoring a liberal construction of Federal powers much weight in cases of this kind, for it is obvious to all'that the powers of the General Government are not necessarily augmented by derogating the authority of the States. They may» be deprived of powers by their own Courts upon the plea of repugnancy to some authority of the General Government, which authority that Government may never recognize in itself, or if recognized, never exercise. Thus paralyzing the powers of the States and depriving them of sovereign and indispensable authority without conferring ’the shadow of power upon the General Government, and producing the unhappy result of a State without the power and a Congress without the disposition to legislate Upon subjects of vital importance to the people. Whilst we believe the supre-' — 302 — macy of all constitutional laws and regulations of the General Government should be cheerfully recognized, and the decisions of its Supreme Court determining its authority accepted as final and controlling, care should be exercised that those powers essential to the welfare and prosperity of the State should not be unnecessarily relinquished. No power, perhaps, is more essential to secure the great end of Government than a full and unrestricted power of taxation ; and as a total deprivation of that power would result in inevitable and hopeless ruin, so every restriction upon, or derogation from it, proportionately diminishes the power of the State to maintain itself. And as the power and prosperity of the States directly enhance the glory and augments the power of the General Government, so weakness and poverty must necessarily produce the opposite results. All considerations, then, outside of the immediate questions in this case are certainly in favor of sustaining the law of this State. The first point made in the argument of this case is that the law imposing the capitation tax of one dollar upon passengers leaving the State, is in conflict with the power of Congress to “regulate commerce with foreign nations, and among the several States and with the Indian tribes,” and also that it is repugnant to that provision which declares that “no State shall, without the consent of the Congress, lay any imposts or duties ■ on imports or exports, except what may be absolutely necessary for executing its inspection laws.” It is not claimed that the Revenue Act conflicts with any .law of Congress passed under its authority to regulate commerce, but it is insisted that that power is exclusive in Congress, and any exercise of it by a State is repugnant to its authority over the same subject. Waiving, for the present, the question of whether the Constitution vests all power of legislation upon the subject exclusively in Congress, we will direct our inquiries to the question of whether this Act of the Legislature can be considered a regulation of commerce. We think not. Though it may, perhaps, incidentally or indirectly affect commerce between the States, it is evident the Legislature had no intention of legislating for the regulation of commerce, nor of interfering with — 303 — the power of Congress to do so; but in the exercise of a power unquestionably vested in it, a burden is perhaps placed upon the commerce among the States. Can it, however, be said that every Act of a State Legislature, which remotely or incidentally affects commerce between the States, is unconstitutional ? If so, every Act which a State may adopt imposing taxes upon its citizens or the property within its jurisdiction must be unconstitutional; for no tax can be imposed upon property which will not in some way affect commerce, not only between the States, but also with foreign countries. All taxes upon imported goods must in some degree affect their importation, and yet that a State máy tax such goods (after they have left the possession of the importer) to an extent which would even result in a total prohibition of their importation, there is no doubt. So a State may require a license to sell goods imported from another State, and may prohibit all sales except by those having a license (License Cases, 5 How. 573), and yet the direct effect of such a regulation would be to decrease the importation of such articles, but as said by Hr. Justice McLean, in the cases above cited, “ still it is clear that a law of a State is not rendered unconstitutional by an incidental reduction of importation.” And indeed it' seems to be well settled upon the weightiest authority, that there is no restriction upon the taxing power of the State, except the laying of imposts or duties on imports or exports, and if, in the exercise of this power, foreign commerce or commerce among the States be incidentally affected, it cannot be said to be a regulation of it, and the State authority must be maintained. This is the doctrine maintained by many of the framers of the Federal Constitution, and by many of its most able expounders. Mr. Hamilton, in the thirty-second number of the Federalist, says: “ I am willing here to allow in its full extent the justness of the reasoning which requires that the individual States shall possess an independent and uncontrollable authority to raise their own revenue for the supply of their own wants. And making this concession, I affirm (with the exception of duties on imports and exports) they would, under the plan of the Convention, retain that authority in the most absolute and unqualified sense.” And in the case of McGul304 loch v. The State of Maryland, 4 Wheat. 428, Chief Justice Marshall says: “ It is admitted that the power of taxing the people and their property is essential to the very existence of Government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the Government may choose to carry it. The only security against the abuse of this power is found in the structure of the Government itself.” The very prohibition that no State shall lay any impost or duty on imports or exports, is itself a strong implication that as to all other taxes the authority of the State remains unrestricted. Chief Justice Taney, in his dissenting opinion, in the Passenger cases, says: “ I may, therefore, safely assume that, according to the true construction of the Constitution, the power granted Congress to regulate commerce, did not in any degree abridge the power of taxation in the States. * * * They are expressly prohibited from laying any duty on imports or exports, except what may be absolutely necessary for executing their inspection law?, and also from laying any tonnage duty. So far their taxing power over commerce is restrained, but no farther.” And in the case of Livingston v. Van Ingen, Chancellor Kent makes use of the strong language that “ the States retain the same absolute powers of taxation which they possessed before the adoption of the Constitution, except' the power of laying an impost which is expressly taken away. This very exception proves that without it the States would have retained the power of laying an impost; and it further implies that wi cases not excepted, the authority of the States remains unimpaired.” If, then, the passengers conveyed out of the State be not comprehended within the term “ export ” (as they certainly are not), the levying of the tax upon them while within the jurisdiction of the State is the legitimate exercise of a power which the State unquestionably possesses. But it is said, if the State has the power to levy this tax, it may be so exercised as to prohibit all emigration from the State. True, but that would be an abuse of power, and it is illogical to argue from its abuse against its existence. So a State might impose taxes so burdensome upon imported goods as to prohibit their importation; it is, nevertheless, settled — 305 — beyond, a doubt that it may do so. If, however, it is admitted that the Act of the Legislature is a regulation of commerce, it is a complete answer to the position of counsel for the petitioner that the State law does not conflict with any Act or regulation of Congress, and the power to regulate commerce being concurrent in the States and the General Government, the State may pass any law regulating it within its jurisdiction not conflicting with some law of Congress. The concurrent power of the State, however, being subordinate to that of the General Government, its laws must yield whenever they conflict with any Act of Congress regulating the subject. We are aware that a great diversity of opinion has existed and still exists upon this perplexing question, and that some of the ablest Judges who have graced the jurisprudence of our country have entertained opposite opinions upon it. And though it has often engaged the attention of the Courts, it cannot be said to be free from doubt and uncertainty; the weight of authority and force of reasoning, however, certainly seems to be in favor of the doctrine that the power is exclusive in Congress only so far as it is exercised by it. That a State law is not unconstitutional because repugnant to the dormant power in Congress to regulate commerce. The mere grant of power to Congress cannot by any reasonable construction imply a prohibition upon the States. If so, why are many of the powers expressly granted to Congress prohibited to the States in the same instrument? Indeed, nothing seems more evident than that the framers of the Constitution did not so intend it. If they did they may be charged with having introduced numerous useless and objectless provisions into it, which is an assumption not to be tolerated. It is apparent from the whole tenor of' the Constitution that the object was to rest some powers exclusively in the general Government, and to leave others to be concurrently exercised by it, and the several States. The power is granted to the Federal Government “ to grant letters of marque and reprisal,” “ to coin money,” and to make treaties,” and yet by Section 10, Article I. of the Constitution, these same powers are expressly prohibited to the States. If the grant of such powers implied a prohibition upon the — 306 — States, why this express prohibition of some of them ? True, there are powers granted, which from their very nature become exclusive. Any power growing out of the Federal Union and not possessed by the States before the adoption of the Constitution are necessarily exclusive. As, for instance, Congress lias power to borrow money on the credit of the United States, to constitute tribunals inferior to the Supreme Court, and to make rules for the goverment of the land and naval forces. These are powers resulting directly from the union of the States, and cannot be exercised by any one of them. But where the authority is one vested in the States before the adoption of the Constitution, and it is not directly repugnant to, or incompatible with, a similar power granted to Congress, it is not exclusive and may be exercised concurrently by both Governments, unless the granted power be in express terms made exclusive, or its exercise is prohibited to the States. And with the qualification always, that when the laws of a State and of Congress conflict, or the State law is repugnant to any law of the General Government, that of Congress, being the supreme law of the land, must prevail. There are many powers granted to Congress, the exercise of which is indispensable to the safety and welfare of the States, and which have never been exercised by Congress. The power to establish uniform laws on the subject of bankruptcy throughout the United States; to fix the standard of weights and measures; to provide for organizing, arming and disciplining the militia, are granted to Congress, and yet the right of the States to exercise the same powers has been always recognized and never seriously questioned. In the case of Houston v. Moore, 5 Wheat. 1, the Supreme Court of the United States held that the grant of power to the Federal Government to provide for organizing, arming and disciplining the militia did not preclude the States from legislating on the same subject, provided the law of the State is not repugnant to the law of Congress. So, too, in the case of Sturges v. Crowninshield,, 4 Wheat. 196, it was held by the same Court that a State might legislate upon the subject of bankruptcy, notwithstanding the power is granted to Congress to pass uniform laws on the subject. It would be rather difficult, we apprehend, to give any — 307 — substantial reason why these powers should be concurrent, and the power to regulate commerce exclusive. There is nothing in the form of the grant, and certainly there seems to be nothing in the character of the powers, which would authorize a rule in the one case not applicable in the other. If not, these cases directly sustain our views upon this question. In the early history of the Constitution this was the prevailing doctrine among the ablest advocates for its adoption. In the 32d number of the Federalist it is said that “ notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should exist in the States, to insert negative clauses prohibiting the exercise of them by the States.” In the same number, Mr. Hamilton says that there are only three cases in which the State authority is alienated: 1st, where the grant to the General Government is in express terms exclusive; 2d, where the like power is expressly prohibited to the State; and 3d, where an authority in the States would be absolutely and totally contradictory and repugnant to one granted to the Union. In the case of Livingston v. Van Ingen, 9 Johns, p. 507, Chancellor Kent, in delivering the opinion of the Court, says: “ The powers of the two Governments are each supreme within their respective constitutional spheres. They may each operate with full effect upon different subjects, or they may, as in the case of taxation, operate upon different parts of the same subject, -x- * * We have nothing to do in the ordinary course of legislation with the possible contingency of a collision, nor are we to embarrass ourselves in the anticipation of theoretical difficulties, than which nothing could in general be more fallacious. * * * One safe rule of construction and of action is this: That if any given power was originally vested in the States, if it has not been exchosively ceded to Congress, or if the exercise of it has not been prohibited to the States, we may then go on in the exercise of the power until it comes practically in collision with the actual exercise of some Congressional power.” Mr. Justice Thompson, in the same case, says: “ But it is obvious that the mere grant of a power to Congress does not — 308 — necessarily vest it exclusively in tliat body.” So this construction lias been repeatedly recognized by many of the Judges of tbe Supreme Court of the United States; and the Court itself, in the case of Wilson v. The Blackbird Creek Marsh Company (2 Pet. 245), expressly declared this to be the correct doctrine even in the case of the commercial power. We would feel satisfied to rest this question upon the authority of that case were it not for the fact that some of the Judges of the same Court have subsequently attempted to repudiate the rule there adopted. That case arose upon a privilege granted by the Legislature of Delaware to the plaintiff to construct a dam across a navigable creels: through which the tide ebbed and flowed. The question was directly raised as to whether the Act of Delaware was in conflict with the power of the United States to regulate commerce, and the Court expressly passed upon it. In delivering the opinion, Chief Justice Marshall said: “If Congress had passed any Act which bore upon the case, any Act in execution of the power to regulate commerce, the object of which was to control State legislation over those small navigable creeks into which the tide flows and which abound throughout the lower country of the middle and Southern States, we should feel not much difficulty in saying that a State law coming in conflict with such an Act would be- void. But Congress has passed no such Act. The repugnancy of the law of Delaware to the Constitution is placed entirely in its repugnancy to the power to regulate commerce with foreign nations and among the several States — a power which has not been so exercised as to affect the question. The Act is not in violation of this power in its dormant state.” The question again came up before that Court in the License Cases (5 Howard, 514), and the doctrine is reiterated and sustained by a power of reasoning which ought to have settled the question in that Court at least; but in subsequent cases which have been before it, a different rule is laid down by some of the Judges, and it is claimed that it has been established by the Court. In Thurlow v. The Commonwealth of Massachusetts, Mr. Justice McLean says: “ The acknowledged police power of a State extends often to the destruction of property. A nuisance — 309 — may be abated. Everything prejudicial to the health and morals of a city may be removed. Merchandise from a port where a contagious disease prevails, being liable to communicate the disease, may be excluded, and in extreme cases it may be thrown into the sea. This comes iñ direct conflict with the regulation of commerce, concl yet no one doubts the local power. It is a power essential to self preservation, and exists necessarily in every organized community.” Mr. Justice Catron, in the same case, says: “ That the law of New Hampshire was a regulation of commerce among the States, in regard to the article for the selling of which the defendants were indicted and convicted, but that the State law was constitutionally passed because of the power of a State thus to regulate, there being no regulation of Congress, special or general, in existence, to which the State law was repugnant.” This was declared to be the rule by the entire Court, and sustained by the opinion of six of the Judges. The question was necessarily involved in those cases and determined by the Court. This is certainly an array of authorities which no Court should disregard except upon the most pressing necessity, and upon counter authority equally binding. It is claimed, however, that the Supreme Court in the cases of Gibbons v. Ogden, 9 Wheat. 1; Brown v. The State of Maryland, 12 Wheat. 392, and the Passenger Cases, 7 Howard, 392, settle the question in favor of the exclusiveness of the power. We think not. The case of Gibbons v. Ogden did not involve the question. That case arose upon an Act of the Legislature of New York granting to certain persons the exclusive privilege of navigating all the waters within the jurisdiction of the State with steamboats. The complainant claiming the exclusive right under this Act, sought to obtain an injunction to restrain the respondent from navigating the waters within the jurisdiction of the State. The Supreme Court held the Act of New York unconstitutional, simply upon the ground that it was in conflict with the Act of Congress providing for enrolling and licensing vessels in the coasting trade. The respondent’s vessel having been licensed under the Act, was entitled, say the Court, to navigate any of the navigable waters of the United States, and no State had a — 310 — right to forbid it, as was done in that case. And the Court expressly waive tbe question of exclusiveness. On page 200, the Chief Justice says: “In discussing the question whether this power is still in the States in the case under consideration, we may dismiss from it the inquiry whether it is surrendered by the mere grant to Congress, or is retained until Congress shall exercise the power. ¥e dismiss that inquiry because it has been exercised, and the regulations which Congress deemed it proper to malee are now in full operation.” The great Judge who delivered the opinion in that case, has, we think, repudiated the notion that any such point was determined by the Court. The case of Wilson v. The Blackbird Creek Marsh Company came before the same tribunal subsequently to the decision of Gibbons v. Ogden, and that case was relied on by the counsel for the plaintiff in error as conclusive to establish the unconstitutionality of the law of Delaware, but the Court holds distinctly and emphatically that the mere grant of power to Congress is exclusive only so far as it may be exercised by it — thus utterly ignoring the construction which has been so often placed upon the case of Gibbons v. Ogden. The only question decided in the case of Brown v. The State of Maryland was, that a State law prohibiting an importer of foreign goods from selling without a license was unconstitutional, because repugnant to that article of the Constitution which declares that “No State shall lay any impost or duties on imports or exports,” the Court holding that the importation gave a right to the importer to sell such goods free from any charge by the State. It is also said by the Court that Congress having authorized the importation, by implication authorized the sale by the importer, and therefore any law by the State prohibiting such sale, or taxing the privilege, was an interference with the regulation of commerce by the General Government. Nothing further was determined in that case, and it certainly bears no analogy to the one under consideration. The opinions and reasonings of some of the Judges in the Passenger Cases are unmistakably in conflict with our position, and to many of the former decisions of the same Court. But those opinions, so far as they pass upon the question of — 311 — the exclusiveness of tlie power of Congress to regulate commerce, did not receive the concurrence of a majority of the Justices. Chief Justice Taney and Judges Daniels, Nelson and ’Woodbury dissent from the opinions delivered by the other Judges, and Mr. Justice Catron distinctly says that the question did not arise in those cases, and placed his concurrence upon the ground that the Acts of New York and Massachusetts were repugnant to certain laws of Congress. If he had not changed the opinion which he entertained in the License Cases (and there seems to be no indication that he had) a majority of Justices were opposed to the reasoning of Judge McLean. Nothing was, therefore, determined in that case, but that the laws of New York and Massachusetts were in conflict with certain .laws of Congress regulating commerce and treaties of the General Government, and that they were for those reasons void. If it were admitted, however, that the Passenger Cases determined the question in favor of the exclusiveness of the power, and the reasoning of Judge McLean is to prevail, those cases are. utterly irreconcilable with the theory upon which a large number of cases have been decided by that Court, and which are still accepted as authority. And it must be admitted that the reasoning of Judge McLean does not sustain the position, and is in direct conflict with his opinions in other cases. In the case of Thurlow v. The Commonwealth of Massachusetts, he says: “ A license may be required to sell foreign articles when those of a domestic manufacture are sold without one. And if the foreign articles be injurious to the health or morals of the community, a State may, in the exercise of that great conservative police power which lies at the foundation of its prosperity, prohibit the sale of it.” But how, if the power to regulate commerce, be exclusive in Congress, can a State prohibit the importation of any article of commerce ? There is surely nothing in the Constitution which authorizes the prohibition or control of one article more than another. Is there anything in the grant of power which authorizes the prohibition of an article which is injurious to the health or morals of the community any more than that which may be prejudicial to its manufacturing or agricultural interests % Certainly not. — 312 — The word “ commerce,” as used in the Constitution, includes commerce in all its ramifications, and in every feature'or form which it may assume — that is, with foreign countries and among the States — and if the power to regulate it be exclusive, it is co-extensiv-e with the meaning of the word. If Congress alone can exercise that power, the conclusion is easily shown by the simple syllogism. A State law regulating commerce is unconstitutional and void. A law prohibiting the importation of licentious publications, infected goods, or providing quarantine regulations, is a regulation of commerce. Therefore, any law affecting those subjects is unconstitutional. And yet it is admitted by all that a State may prohibit the importation of such articles, and may make quarantine regulations. And it seems impossible to maintain it upon any hypothesis, except that the power to regulate commerce is concurrent in Congress and the several States. It would be the propagation of a dangerous heresy to hold that a State may regulate commerce whenever, in the discretion of its Legislature, the health or morals of the community require it, and that such regulation would be superior to the power of the G-eneral Government. This would be making the power of Congress to regulate commerce subordinate to the police power of the State; for it gives to the State the power of determining what articles may be imported and what prohibited, and it needs no argument to show that the power which may prescribe what articles may be the subject of commerce is the controlling one. If the State has a right to determine what articles of commerce are or are not injurious to the health or morals of the community, and to prohibit the importation of whatever may be deemed so injurious, it must be admitted that its power over Congress is unlimited and supreme, and if the power is exclusive in Congress it amounts to a prohibition upon the States, and no necessity, such as the preservation of health, morals or safety of the community, could sustain the State law which in any wise regulated commerce, and the exceptions which are made are unwarrantable. The better rule, and that sustained by the preponderance of authority, seems to be, that subject and subordinate to the — 313 — power of Congress a State may regulate commerce within its own jurisdiction, and its laws enacted for that purpose are unconstitutional only when they conflict with, or are repugnant to some act or regulation of the General Government. This rule removes all possible difficulties, recognizes the supremacy of the power of Congress, and its exclusiveness so far as it may be exercised, and enables the States to relieve themselves from the evils and inconveniences which might possibly arise from the failure or neglect of Congress to exercise any power granted to it. In other words, the States are enabled to protect themselves, not from the laws or constitutional authority of Congress, but from its inaction. Upon the second point made by counsel for petitioner, little need be said. Me do not think that the passengers upon whom this tax is levied can be included within the provision of the Constitution, which declares that no State shall lay any duties or imposts on imports or exports. It seems to be generally admitted that the words import and export have reference only to property and not to persons. (Brown v. State of Maryland.) Neither does the tax conflict with Section 7 of Article II. of the State Constitution, which limits the poll tax to four dollars upon all male residents of the State within certain ages. This cannot be considered a poll tax within the meaning of that section of the Constitution. If it be a tax upon the passenger at all, it is levied upon those enjoying or exercising a certain privilege. But it is more properly a tax upon the common carrier regulated by the number of passengers transported. The State law is therefore constitutional. The time having expired during which the petitioner could be held under the commitment of the Court below, no order can be made remanding him to the custody of the Sheriff, but our views here expressed may be a guide in subsequent cases of this character.