Page:Immigration and the Commissioners of Emigration of the state of New York.djvu/201

Rh McLean, J., of the majority in Smith vs. Turner, says that, if foreigners are thus to be taxed, as well might passengers who come from another State. This is unconstitutional because of the clause cited; but this does not protect passengers, except by the same implication as does the clause respecting the regulation of foreign commerce.

The second clause of the tenth section of the first article reads: "No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the treasury of the United States. No State shall, without the consent of Congress, lay any duty of tonnage."

In Smith vs. Turner, Grier, J., of the majority, says an act imposing a tax on passengers from foreign ports before landing might be called an act to raise revenue off vessels transporting passengers. It is a duty on the vessel, producing a like result as a tax on tonnage. That the tax is really paid by the passenger is no answer. Such is any indirect tax. A State, says Catron, Jr., "cannot raise duties on imports as a revenue measure for her own treasury." The passengers had not yet come under State jurisdiction, because they could not be taxed without either taxing tonnage or imports. In New York vs. Milne, Barbour, giving what appears as the opinion of the Court, says that passengers are not imported goods. But this, says Wayne, is what made Baldwin say he liked this opinion less than Thompson's, and which was contrary to the opinion of five of the judges. But in Smith vs. Turner this opinion is held by Daniels, Taney, Nelson, and Woodbury. That passengers are not imports, says Taney, C.J., was decided in New York vs. Milne. But at all events this tax was necessary for the inspection of these imports (477, 481). Woodbury, that passengers are not imports, cites Brown vs. Maryland (McCulloch, Dictionary, article Passengers; 5 How., 594, 614). If they were, they would