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“State," so as to make it applicable to goods imported before the establishment of the Commonwealth. Sir Philip Fysh proposed words to make it clear that these duties are to be credited to the State of destination ; but the amendment was deemed unnecessary, and withdrawn. Sir George Turner suggested that where the duty paid in the colony was higher than the Commonwealth duty, the State should give a drawback ; but the matter was left over for consideration. An amendment by Mr. Henry, to limit the clause to one year, was negatived by 32 to 9. The provision that laws derogating from free-trade should be void disappeared from the Bill, that result being sufficiently secured by this clause. (Conv. Deb., Melb., pp. 1014-36.) Drafting amendments were made before the first report and after the fourth report.

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§ 389. “ Trade Commerce and Intercourse .. shall

be Absolutely Free.” FREEDOM OF INTER-STATE TRADE.—This section is intended to provide for the perfect freedom of trade and commerce among the States, from the moment of the imposition of uniform duties In order to secure that object the strongest possible words have been used. Nothing has been left to implication. In this respect the Constitution of the Commonwealth is more explicit than the Constitution of the United States, which merely forbids the States to lay any duties on imports or exports without the consent of Congress. (Art I. sec. X. subs. 2.) But it was held in Brown v. Houston, 114 U.S. 622, and Woodruff v. Parham, 8 Wall. 123, that the prohibition dil not apply to goods carried from one State of the Union to another ; such goods were not imports or exports ; imports were commodities coming from foreign countries into the Union, and exports were those proceeding out of the Union into foreign countries. In America, therefore, inter-state free-trade depends solely on the rule of construction that the regulation of trade and commerce, in matters requiring uniformity of legislation, is exclusively vested in Congress, and that the States are, ipso facto, deprived of the power to impose duties on goods proceeding from one State into another. Under the Constitution of the Commonwealth there are two express guarantees for freedom of trade between the States ; sec. 90, which provides that on the imposition of duties of customs the power of the Parliament to deal with that subject becomes exclusive; and sec. 92, which provides that thenceforth trade, commerce, and intercourse among the States shall be absolutely free.

This section, and all the cases cited in illustration of its meaning, must be read subject to the special provisions of sec. 113, which enacts that “ All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.”

THE ELEMENTS OF INTER-STATE FREE-TRADE.-Two questions have to be considered in connection with sec. 92 in order to grasp its significance ; first, what is absolute freedom of trade, commerce, and intercourse ? and secondly, during what period of time or within what limits of space do inter-state trade and commerce operate, so as to remain protected by the shield of Federal freedom? In reference to the first question, absolute freedom of trade, commerce, and intercourse may be defined as the right to introduce goods, wares, and merchandise from one State into another, the right to sell the same, and the right to travel unburdened by State restrictions, regulations, or obstructions. Freedom of trade necessarily means the right to sell as well as the right to introduce, and the right to travel in order to sell. The right of introduction without the right of disposition would reduce freedom of trade to an empty name. The second question may be conveniently discussed under the headings, 11) When does exportation begin? and (2) When is importation complete ?

When EXPORTATION BEGINS. - It has been held that exportation does not begin until the goods are committed to the custody of a carrier for transportation out of a State. Until then they remain subject to State laws and are taxable as a part of the general mass of property in the State. (Coe v. Errol, 116 U.S. 517. See other cases cited p. 519, supira.)

WHEN IMPORTATION IS COMPLETE. -- Articles of foreign or inter-state commerce become subject to State laws and State taxation from the moment when they are divested of their inter-state or foreign quality. This happens as soon as they pass from the original importer into the hands of the purchasers of the original packages, or as soon as they have been broken up for retail by the original importer. (Brown v. Maryland, 12 W’heat. 419 ; Turpin v. Burgess, 117 U.S. 504. Burgess, Political Sci. ii. p. 135.)

DOCTRINE OF ORIGINAL PACKAGE. --An original package has been defined as the unbroken package, in the condition in which it was prepared by the exporter, received and transported by the carrier, and brought into the importing State. (McGregor v. Cone, 1898, 73 N. W. Rep. 1041.) Thus boxes and barrels are original packages. In some cases it has been held that where bottles of liquor were packed in barrels and boxes, and transported into a State, the bottles were the original packages and were within the protection of the Federal commercial law, after they had been removed from the barrels and boxes. These cases, however, have been overruled, and it is now held that the barrels or boxes, and not the bottles, are the original packages. (Prentice and Egan, Commerce Clause, p. 82.) It has been further held that the question, what constitutes an original package, is partly one of good faith, and that the importer may determine for himself the form and size of the package which he buys. (Guckenheimer r. Sellers, 81 Fed. Rep. 997.) The importer may sell his goods in the original package, by wholesale or by retail. (Schollenberger v. Pennsylvania, 171 U.S. 1.) An original package becomes subject to State jurisdiction as soon as it is broken. (Brown v. Maryland, 12 Wheat. 419 ; Leisy v. Hardin, 135 U.S. 100.) The original package is not broken merely by the fact of lifting the lid for the examination of its contents. Re McAllister, 51 Fed. Rep. 282.) The drawing of a bung from a barrel, in order to obtain a small quantity of its contents for testing purposes, does not constitute a breaking of the package. (Wind v. Iler, 93 Iowa, 316.)

METHODS OF FETTERING INTER-STATE COMMERCE. – The principal methods resorted to by some of the States of America, in order to avoid the rule of freedom of trade, may be thus classified--(1) By the imposition of taxes on imported goods, after their entry into the State, this being done in the pretended exercise by the State of the right to tax all property within its jurisdiction. (2) By requiring persons engaged in selling goods introduced or coming from another State to pay for licenses to sell, this being also done in the pretended exercise of State taxing power. (3) By restricting the actual introduction of goods from another State, on alleged sanitary or moral grounds, this being done in the pretended exercise of the police power of the State.

TAXES ON INTER-STATE COMMERCE. – The following are instances of taxes on inter-state commerce, violating the law of commercial freedom :-A tax on goods coming from other States unaccompanied by equal taxes on similar local goods, held to be unconstitutional and void (Brown v. Houston, 114 U.S. 622); a tax on the earnings of carriers conveying freight and passengers, from one State into another, held unconstitutional (Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196); a tax on persons selling goods manufactured out of the taxing State, and no similar tax exacted from those engaged in the sale of like goods manufactured in that State, held unconstitutional (Walling v. Michigan, 116 U.S. 416); a tax on cars belonging to a carrying company which run from point to point within the taxing State to points without the State, held unconstitutional (Pickard ». Pullman Car Co., 117 U.S. 34); a tax on every ton of freight, carried by a railway in and through a State, held unconstitutional (The State Freight Tax Case, 15 Wall. 232); a tax on all messages sent by a telegraph company, se far as it applied to messages sent to or received from points in other States, held unconstitutional (Telegraph Co. v. Texas, 105 U.S. 460) ; & tax on all persons soliciting orders for goods, so far as it applied to those canvassing for

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persons outside the State, held unconstitutional (Asher v. Texas, 128 U S. 129) ; a tax on all non-residents who sold liquors, held unconstitutional (Walling v. Michigan, 116 U.S. 446); a tax on a carrying company for every alien passenger brought by it to the ports of a State, held unconstitutional (People v. Compagnie Generale, 107 U.S. 59 ; Henderson 7. Mayor of New York, 92 U.S. 259); a tax on the gross receipts of common carriers, so so far as it applied to receipts from inter-state business, held unconstitutional (Faryo v. Michigan, 121 U.S. 230); a tax on all vessels touching the wliarves of a State, so far as it applied to vessels engaged in inter-state business, held unconstitutional (Inman S.S. Co. 7. Tinker, 94 U.S. 238); a tax on the franchise of a railroad company which had been granted by the Federal legislature, held unconstitutional (California v. Central Pacific R. Co., 127 U.S. 1); a tax on the tonnage of vessels, even though such tax was exacted in aid of quarantine inspection, held unconstitutional ; a tax collected from auctioneers on their sales of imported goods in their original packages, held unconstitutional (Cook 1. Pennsylvania, 97 U.S. 566); a tax on bills of lading for the transportation of gold or silver from one State to another, held unconstitutional (Almy v. California, 24 How. 169) ; a tax of 5 dollars on each vessel entering a port of a State, such tax being supplied to support the Port Wardens, and collected, whether the vessel required their services or not, held unconstitutional (Steamship Co. v. Port Wardens, 6 Wall. 31); a tax on a non-resident railway company engaged in inter-state traffic, for the right to maintain an office in the taxing State, in order to promote its business, held unconstitutional (Norfolk and Western R. Co. v. Pennsylvania, 136 U.S. 114).

LICENSES TO ENGAGE IN INTER-STATE COMMERCE. — The following are instances in which State laws taxing persons engageri in inter-state commerce have been held to violate the rule of commercial freedom, viz., laws requiring pedlars selling goods not grown or manufactured in the taxing State to hold licenses, whilst no licenses were required of persons selling similar articles grown or manufactured in the State, held unconstitutional (Welton v. Missouri, 91 U.S. 275); requiring commercial travellers canvassing for the sale, by sample, of goods at the time outside the State to hold licenses, held unconstitutional (Asher v. Texas, 128 U.S. 129 ; Robbins r. Shelby Taxing District, 120 U.S. 489 ; Stoutenburgh v. Hennick, 129 U.S. 141); requiring persons selling malt liquor, the product of another State, to hold licenses, held unconstitutional (Tiernan v. Rinker, 102 U.S. 123); requiring persons selling goods, not the product or manufacture of the veudors, to hold licenses, held unconstitutional (Corson 1. Maryland, 120 U.S. 502) ; requiring the officers of foreign corporations engaged in inter-state commerce to bold licenses, held unconstitutional (McCall v. California, 136 U.S. 104); requiring persons engaged in inter-state occupations to hold licenses, held unconstitutional (Moran 1. New Orleans, 112 U.S. 69); requiring the owners of inter-state ferry boats touching the wharves of a State to hold licenses, held unconstitutional (St. Louis v. Wiggins Ferry Co., 11 Wall. 423); requiring a telegraph company established by the federal legislature to hold a license, held unconstitutional (Leloup v. Port of Mobile, 127 U.S. 640); requiring a license to be held by an agent of a foreign express company, held unconstitutional (Crutcher v. Kentucky, 141 U S. 47); requiring an agent of a company having a railway in a distant State, and soliciting business for that railway, to hold a license, held unconstitutional (McCall v. California, 136 U.S. 104); requiring a license fee for the use of a stream in prosecuting inter-state commerce, held unconstitutional (Harman 1. Chicago, 147 U.S. 396).

POLICE POWERS EXERCISED TO RESTRICT INTER-STATE COMMERCE.—The following are examples of State laws, passed in the exercise of police powers, which obstruct and restrict inter-state commerce, and which consequently violate the rule of commercial freedom, viz., a law prohibiting the introduction into a State of cattle or good3 during certain periods of the year, ostensibly for sanitary purposes, but in reality for State protective purposes, held unconstitutional (Railroad Co. v. Husen, 95 U.S. 165) ; prohibiting the introduction into a State of certain kinds of human food, unless inspected before its preparation, ostensibly for sanitary reasons, but in reality for State protective purposes, held unconstitutional (Minnesota v. Barber, 136 U.S. 313); prohibiting the introduction of certain goods, such as intoxicating liquors, ostensibly to preserve the morals of the people, held unconstitutional (Bowman v. Chicago, &c., R. Co., 125 U.S. 465 ; Leisy v. Hardin, 135 U.S. 100 ; see, however, the Wilson Act (America), and sec. 113 of this Constitution.)

TAXES BY STATES IN EXERCISE OF THEIR TAXING POWERS.-- In the cases cited, in which taxes imposed by States were held to be unconstitutional and void, the taxes were for the most part of a discriminating character, in taxing the means of commerce and the subjects of commerce coming from other States, or they were so thinly veiled as to be reasonably suspected of an intention to tax inter-state commerce and so impair its freedom. Discrimination is one of the principal tests applied in determining the constitutionality of a State tax. (Tiernan v. Rinker, 102 U.S. 123.) A discriminative tax on imported goods would be unconstitutional, even if imposed on the goods after they had left the hands of their original importers, and even after their original packages had been broken. But discrimination is not the only test. A tax on inter-state trade and traffic may be blended in a tax on domestic traile and traffic. In such a case the discrimination intended might not be apparent, and yet the Courts might discern the intention to tax inter-state trade and traffic, so lurking in the plan of taxation as to bring it within the prohibition. The people of a State might find it conipatible with their views and interests to impose a tax on a portion of their own trade and business, in order to have the privilege of taxing the larger volume of inter-state trade and business of the same kind. Consequently in the State Freight Tax Case (15 Wall. 232) a tax imposed by a State on all the freight, both domestic and inter-state, conveyed by a railway company in and through a State was held unconstitutional. A similar principle was attirmed in Telegraph Co. v. Texas, 105 U.S. 460.

There are several cases, however, in which it has been distinctly held that a State may adopt a general system of taxation which may indirectly affect every branch of commerce, and yet be within its constitutional right. The first was that of Brown v. Houston, 114 U.S. 622, which is described by Dr. Pomeroy as one of the most interesting and delicate cases involving the power of a State to tax goods of an inter-state origin. In this case coal was mined in the State of Pennsylvania, and then shipped to New Orleans in the State of Louisiana to be sold in the open market for the Pennsylvanian owners. The coal was not landed at New Orleans, but remained on board the vessel in which it arrived in port, and was sold whilst on board that vessel, the purchasers intending to take it out of the country in a foreign bound vessel. The city corporation of New Orleans claimed a tax on the coal under the terms of a general law taxing property within the State. It was held by the Court that the coal had become intermingled with the general property of the State ; that it was properly taxable according to the recognized rule, that after goouls have arrived at their place of destination in a State, either for use or for trade, they become subjeet to any general tax laid on all property alike, without discrimination, in the State. The decision in Brown r. Houston is not considered to be in conflict with the rule of the immunity of original packages, because the bulk had been broken and the tirst sale had taken place.

In the case of Emert r. Missouri, 156 U.S. 296, it was held that a State can levy a tax or demand a license fee for the right to sell goods in the possession of the seller, and by him offered for sale, even if they are the products of another State. In the case of Pittsburg Coal Co, e. Bates, 136 L'.S. 577, coal sent by river from Pennsylvania to Louisiana, while kept on the boats by which it had been travsported, was offered for sale and part was sold ; held that it was liable to State taxation.

In Myers t". Commissioners of Baltimore county, 35 Atl. Rep. 144, a tax was imposed by a State upon an average number of cattle, owned by a dealer within a State, which had been received by him during the year from the Western States, held usually for one day, and afterwards sold for export. It was held that, like other property situated within the State, they were liable to State taxation.

These cases, however, will require very careful consideration before any opinion can be expressed as to how far they would be applicable in the interpretation of the Constitution of the Commonwealth.

A State has a right to tax all the domestic trades and occupations of its citizens. In Ficklen v. Shelby Taxing District, 145 U.S. 1, where a resident citizen, engaged in a general business, was subject to a particular tax, it was held that the fact that, for the time being, the business happened to consist in whole or in part of negotiating sales between residents and non-residents of goods made in another State, did not make such a tax an imposition on inter-state commerce.

A State may tax personal property employed in inter-state commerce, like other personal property within its jurisdiction. (Marye v. Baltimore and Ohio R. Co., 127 U.S. 117 ; Western Union Tel. Co. 1, Massachusetts, 125 U.S. 530 ; Western Union Tel. Co. r. Taggart, 163 U.S. 1. Cooley's Const. Law, p. 80.)

In the case of Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18, a statute of Pennsylvania imposed a tax on the capital stock of every railroad and car company, in the proportion which the number of miles operated by it within the State bore to the whole number everywhere. It was upheld as to the non-resident Pullman Car Company, because it had within the State constantly engaged in its business, though mainly operated in inter-state journeys, a certain number of cars which thus acquired a situs there for taxation, the tax being in reality upon the cars as property. The majority of the judges distinguished the tax on capital stock in this case from an occupation tax, a license tax, or a tax on transit, and they applied the doctrine of Western Union Tel. Co. v. Massachusetts, 125 U.S. 530, in which a tax on specified property was upheld. (Cooley Const. Law, 80-1.) In the State Tax on Gross Receipts Case (15 Wall. 284), the Courts upheld a State tax on the gross receipts of a carrying company, including receipts from inter-state business. This doctrine has since been questioned in Philadelphia Steamship Co. v. Pennsylvania, 122 U.S. 326. In that case the question was as to the validity of a tax levied by Pennsylvania upon the gross receipts of a company, derived from the carriage of persons and property by sea between different States, and it was held that the tax was unconstitutional.

In Maine v. Grand Trunk R. Co., 142 U.S. 217, a State statute provided that every person working a railroad, within the State, should pay to the State treasurer an annual. excise tax, to be determined by reference to the gross receipts of the company, in proportion to its mileage within and without the State. The statute was sustained on the ground that it was a tax on a foreign corporation for the privilege of exercising its franchises within the State. The decision in this case seems to be in conflict with that in the Philadelphia Steamship Co. v. Pennsylvania, 122 U.S. 326.

OTHER STATE FEES AND CHARGES ALLOWABLE. - In the following cases it has been decided that the fees, charges, and licenses required by State laws do not violate the rule of commercial freedom, viz., a stamp fee on snuff intended for domestic use, such stamp being required simply to distinguish it from snuff designed for export, held constitutional (Pace v. Burgess, 92 U.S. 372); a stamp fee on tobacco before its removal from the manufactory, held constitutional (Turpin v. Burgess, 117 U.S. 504) ; a charge for storage and outage collected on tobacco shipped out of a State and inspected at the State warehouse, held constitutional (Turner v. Maryland, 107 U.S. 38); a tax on peddlers of sewing machines, applied alike to those manufactured in and out of a State, held constitutional (Machine Co. v. Gage, 100 U.S. 675, but this case was afterwards overruled); a license fee collected from a foreign corporation, provided such corporation is not engaged in carrying on foreign or inter-state commerce within the State (Pembina Mining Co. v. Pennsylvania, 125 U.S. 181); a license fee exacted from the agent of a corporation organized under a law of another State for the right to solicit insurance business on buildings within the State, held constitutional (Paul v. Virginia, 8 Wall. 168); tolls for the use of improvements in connection with navigable streams and highways (Mobile r. Kimball, 102 U.S. 691 ; Harman v. Chicago, 147 U.S. 396, but the Federal

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