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Argument for Defendant in Error.

196 U.S.

clear usurpation of prohibited power. Objections as to the policy of the act cannot be considered. People v. Jackson Co., 9 Michigan, 285; New Orleans G. L. Co. v. Louisiana L. & H. Co., 115 U. S. 650; Black on Const. Prohib. $ 62; Cases reported in 58 California, 635; 2 Iowa, 280; 13 Minnesota, 341, 349; 68 N. Y. 381; 30 Iowa, 9; 61 Am. Dec. 338, n.; 6 Am. Ency.

6 Law, 2d ed., 921, n.; 20 Iowa, 338; 22 Atl. Rep. 923; 33 Hun, 279; 80 Missouri, 678; 20 Florida, 522; 9 Indiana, 380; 15 Texas, 311; 74 Am. Dec. 522; 61 Am. Dec. 331 n.; 15 Iowa, 304; 2 Iowa, 165.

The statute is not unconstitutional as applying more than one subject or covering matters not within its scope. Duensing v. Roby, 142 Indiana, 168; Perry v. Gross, 41 N. W. Rep. 799; Larne v. Tiernan, 110 Illinois, 173. It is not unconstitutional because not uniform in operation between jobbers and wholesalers doing interstate business and citizens of the State. See original package cases cited supra; nor does it deprive any one of his property without due process of law. Smith v. Skow, 97 Iowa, 640; Hodge v. Muscatine County, 96 N.W. Rep. (Iowa) 969.

The power to tax is inherent in the Government. It is a legislative power and is limited only by constitutional provisions, subject thereto, it extends to everything and everybody, as the legislature may see fit to apply it. Courts cannot control its exercise, unless such exercise conflicts with constitutional limitations. 25 Am. & Eng. Ency. Law, 18, and cases cited; Ferry v. Deneen, 82 N. W. Rep. (Iowa) 424; 27 Iowa, 28; 76 Illinois, 561; 52 Wisconsin, 53; Hagar v. Reclamation Dist., 111 U. S. 701.

The power to impose privilege and occupation taxes exists independently and concurrently in the state and Federal government, subject to constitutional restrictions. Being in the discretion of the legislature, it may select some for this purpose and exempt others, and select the mode in which taxes shall be levied. 25 Am. & Eng. Ency. Law, 21 n., 479, 481, 492; Ward v. Maryland, 12 Wall. 418; 5 How. 504; License Tax Cases, 5 Wall. 71; 69 Illinois, 80; U. S. Const. Art. 1, $ 9,

196 U. S.

Argument for Defendant in Error.

cases.

par. 5; 60 Am. Dec. 581; 133 Massachusetts, 161; 62 Pa St. 491; 89 Georgia, 639; 33 Fed. Rep. 121.

The demand made for money under the police power is secondary to the police regulation out of which the demand grows; while in the case of taxation the principal object is revenue. This distinction is not to be lost sight of, even though the procedure for collection may be similar in both

46 Michigan, 183; 46 Illinois, 392; Cooley on Taxation, 2d ed., 586; 11 Johns, 77; License Cases, 5 Wall. 462.

A tax imposed both for regulation and revenue is not for that reason invalid. Hodge v. Muscatine County, 96 N. W. Rep. 968; 2 Desty on Taxation, 1384.

An occupation charge is different from a general tax, and the constitutional provisions that all taxes shall be equal and uniform apply only to general taxation. It is sufficient if all in the same class are taxed alike. 49 California, 557; 102 Illinois, 560; 11 Ohio St. 449; 46 N. J. Eq. 270; 62 Pa. St. 491; 4 Texas, 137; 6 Wall. 606; 82 N. W. Rep. 424; 29 Wisconsin, 592; 84 Maine, 215; 81 Virginia, 473; 66 N. W. Rep. 893.

In passing upon the mulct liquor law the Supreme Court of Iowa held that such tax was a charge for carrying on the business and acted the same upon all persons and property coming within its provisions; that as the law was general in its scope and provisions, all persons liable thereunder must appear and pay the tax without notice, and that notice was “no more necessary to the property owner than in cases of taxes generally.Re Smith, 73 N. W. Rep. 605; Smith v. Skow, 66 N. W. Rep. 893.

The tax is also a penalty and rules governing ordinary taxes do not govern. Ferry v. Deneen, 82 N. W. Rep. 424.

The meetings of the board of revision are fixed by law and of these all persons must take notice. Palmer v. McMahon, 133 U. S. 660; Glidden v. Harrington, 189 U. S. 255; Davidson v. New Orleans, 96 U. S. 97; McMillan v. Anderson, 95 U.S. 37.

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MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.

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This case involves the constitutionality of section 5007 of the Iowa Code, imposing a tax of $300 per annum upon every person, and also upon the real property and the owner thereof, whereon cigarettes are sold or kept for sale. The section is printed in full in the margin.'

The facts of the case were that the plaintiff, Charles P. Cook, carried on a retail cigar and tobacco store upon premises leased by him from his co-plaintiff. Cook ordered his cigarettes of the American Tobacco Company, at St. Louis. They were delivered to an express company, and brought by such company from St. Louis, or other places outside of the State of Iowa, directly to the place of business of the plaintiff, in small pasteboard boxes, containing ten cigarettes each, each package being sealed and stamped with the revenue stamp. These packages were shipped absolutely loose, and were not boxed, baled, wrapped or covered, nor were they in any way attached together. Nothing appears in the record to indicate the means used in transporting these cigarettes from the factory of the manufacturer to the place of business of the retail dealer, and we are left to infer that they were shoveled into and out of a car, and delivered to plaintiffs in that condition. The pack

1 SEC. 5007. Tax on sale. There shall be assessed a tax of three hundred dollars per annum against every person, partnership or corporation, and upon the real property, and the owner thereof, within or whereon any cigarettes, cigarette paper or cigarette wrapper, or any paper made or prepared for the use in making cigarettes, or for the purpose of being filled with tobacco for smoking, are sold or given away, or kept with the intent to be sold, bartered or given away, under any pretext whatever. Such tax shall be in addition to all other taxes and penalties, shall be assessed, collected and distributed in the same manner as the mulct liquor tax, and shall be a perpetual lien upon all property both personal and real used in connection with the business; and the payment of such tax shall not be a bar to prosecution under any law prohibiting the manufacturing of cigarettes, or cigarettes paper or selling, bartering or giving away the same. But the provisions of this section shall not apply to the sales by jobbers and wholesalers in doing an interstate business with customers outside of the State.

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ages were not separately or otherwise addressed, but at the time they were delivered to the express company the driver gave a receipt showing the number of packages and the name of the person to whom they were to be sent, retaining a duplicate himself.

The constitutionality of the act as applied to the plaintiffs was attacked upon two grounds:

(1) That it was an attempt to interfere with the power of Congress to regulate commerce between the States.

(2) That it denied to the plaintiffs the equal protection of the laws.

The argument of the plaintiffs is the same as that which was pressed upon our attention a few years ago in Austin v. Tennessee, 179 U. S. 343, that the packages of ten cigarettes were each the original packages in which these cigarettes were imported from other States, and that under the decisions of this court in Brown v. Maryland, 12 Wheat. 419; Leisy v. Hardin, 135 U. S. 100, and Shollenberger v. Pennsylvania, 171 U. S. 1, they were entitled to the immunities attaching to original packages. We reviewed these and a large number of other cases in our opinion, and came to the conclusion that these boxes were in no just sense original packages within the spirit of the prior cases, and that their shipment in this form was not a bona fide transaction, but was merely a convenient subterfuge for evading the law forbidding the sale of cigarettes within the State. This case differs from that only in the fact that in the Austin case the packages were thrown loosely into baskets, which were shipped on board the train and carried to Austin's place of business. These baskets, it is argued, might have been considered as the original packages.

This difference, however, was not insisted upon as distinguishing the two cases in principle. Indeed it was admitted to be one not of "great magnitude or seeming legal significance.” The main argument of the plaintiffs was frankly addressed to a reconsideration of the principle involved in the Austin case, and a reinsistence upon the position there taken,

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that the packages in which the cigarettes were actually shipped must govern, and that we cannot look to the motives which actuated such shipment, or to the fact that ordinary importations of cigarettes were made in boxes containing a large number of these so-called original packages. We have carefully reconsidered the principle of that case, and, without repeating the arguments then used in the opinions, we have seen no reason to reverse or change the views there expressed.

The term original package is not defined by any statute, and is simply a convenient form of expression adopted by Chief Justice Marshall in Brown v. Maryland, to indicate that a license tax could not be exacted of an importer of goods from a foreign country who disposes of such goods in the form in which they were imported. It is not denied that in the changed and changing conditions of commerce between the States, packages in which shipments may be made from one State to another may be smaller than those “bales, hogsheads, barrels or tierces,” to which the term was originally applied by Chief Justice Marshall, but whatever the form or size employed there must be a recognition of the fact that the transaction is a bona fide one, and that the usual methods of interstate shipment have not been departed from for the purpose of evading the police laws of the States.

In Leisy v. Hardin, 135 U. S. 100, quarter barrels, and even one-eighth barrels and cases of beer, were recognized as original packages or kegs, though the size of such packages and the usual methods of transporting beer do not seem to have been made the subject of discussion. There is nothing in the opinion to indicate that it was not legitimate to ship beer in kegs of this size. So, too, in Shollenberger v. Pennsylvania, oleomargarine transported and sold in packages of ten pounds weight was recognized as bona fide, but it was expressly found by the jury in that case that the package was an original package, as required by the act of Congress, and was of such “form, size and weight as is used by producers or shippers for the purpose of securing both convenience in handling and security in trans

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