.EX ,P.ARrllEL BROWN.
for the reason that the,assignee is. deemed'to ,possess the same equities only as the debtor himse!fw6uldpossess. '1 rd. § 1228: : It is my. opinion that upon the principles of equity the plaintiff is entitled to. recover thesutn of. money in controversy .in this suit; and de-: cree will be, ehtered accordingly.
Ex parte
BROWN.
,' (D¥trlet, Court. E .. D. Norfll, CaroZina. August 7,1.891.)
to
2.
RievenueAct 'N. O. § 22, requiring all merchants to pay "11.8 a' license tax onetenth per centum on total amount of purchases in or out of the state, (except purchases 61 farm froducts from the producer,) for cash or on credit, " is not a taz oD:the.privilege 0 purchasing goods, but on the goods themselves, as part of the generAl, mMS of property in the and does not, in, its application to pnrotlttl1dlf'the state, operate 'as au' 'interference with interstate commerce. , Rnbblnl/, v.: Ta:mna:D,tst., 7 Sup. Ot. Rep. a92,; LeI.8l/ v. Hardin, 10 Sup. Of,. Rep. 681; and ,FertiZiz1lnaCo. v. BOa1'd oj AgrfcuZturc. 43 Fed. Rep. 609,-distinguished. SAME-TAX ON, IMPORTS. Nor d06Bliucb tax operate asa
COl'!!fIT"I'l'iotfAr. LAw-INTERSTATE COMllEROJi..;-MERClIANTS'LICENSE TA:ll:.
8. SAME__DISCRIMINATION.
tionof C.ost. U. S. al't. 1,5
tax upon lmpQl'tB or exports, within the prohlbicl. 2. ,"
.
The fact that purchases of farm prodlietsfrom the prodncer are excepted from the tax cannot be said to operate as a discrimination ag'llinst farmers residing outside the statel because, it is probable that merchants, will bny more products from resldent than from noll-resident farmers.
At Law. Application by Alexander H. Brown for a writ of habeaa corp1.ultorelease him from imprisonment, because of'a failure to comply with the requirements of the revenUe act of North Carolina. Heard at chambers. Writ refused.' 'for petitioner. 'TJW1TUJ8 Strange, for the State. SEYMOUR, J. 'This petition for a writ of habea8: COTPus has been' prelicense tax of the state sented· with, the 'purpose of ,t esting the of North Ollr6liria., Mr. Strange was, by consent,heard in opposition to the petition in"behalf ofthe state, and the factBSet forth therein were admitted, 'for the purpOses of ihis application:, to be true. The material parts of the revenue act are found' in section 22 of the act, and are in these' woMs: · i ,I · ' i' Evtirylilerchant; jeweler. Jtrocer. druggist, or other dealer who shallbul and st>U,goOdt\, merChandise, of whatsoever descrjpqon, not spe" ciallv taxed elsewhere in this act. shall, in addition to his ad valorem tax. on his s"tllck.lll\yas;;8,lictID.se taxone--tenlb pl'r r.entum on the total amount in or out ,of the state, (elrcE'pt pu rchases of farm prod uets of the <f9r'Clish or on credit, whetl1er such persons mentioned agent or commission merchant. shall purehasll"as prJncipal or through Every personrMnttOnt>d in this 8i>ctionshall. within ten dayssl'tier the fh"st days of Janl1aty:."tidJuly in eaCh year, dellvpt to thee.el"k'of;the board of county cOllunialSio-uerlil aswotn I'!,the aInOUQt .Of his fot
436
FEDERAL REPOMER,
vol. 48.
the precediLig six month!!·.. "" '" ",. EveDY merchant or, dealer failing to render such list '" .'" '" shall be a mi/ldemeanol'. '" '" "' .. Petitioneds a merchant in Wilmington, who is engaged in the busimlss,ofbl1ying in other states, and bringing into Nortb Carolina, and there selling, large quantities of merchaQdise, including farm products not purchased from the producer, as well as in the business of buying and selling such articles in North Carolina. Having been so advised by counsel, he has refused to deliver a sworn statement of purchases out of the state, but has delivered to the clerk of the board of county ers such a statement of purchases within the state, and paid tax accordingly. Thereupon he has been arrested, and held in .custody by the sheriff of his:county,on a warrant chal'gillg him with a vi'dlation of the statute He claims that his arrest is illegal"p.nd that he is restrained..of his liberty in violation ofihe constitution of the United is w4ether tax imP9s,e,dupon. merchantf:l of States..,., ,$;0. 1 per centumonpu'rohase.s out of the·stateis unconstitutiona,kllild.ijfso; to, deliver.a.'8w()rn statement.,9f such purohases, with a view to the listing of such tax, is iIi vidlationof the constttution of the United Statlls. tion 3,ofthe ,revenue act imposes an a,d valorem tax 0(25 cents on $100 value of all real and personal property withinthestate.'J?he tax unis in addition. to the, ad, 'lia!prernta)C, of the der provision oftheconstitution of North Carolina requiring equal taxation on all re1tlahd personalpr()perty, wqu)d'be' illegal, ,but that it is tax, and therefore within the authority given to the legislature by artiole.5,1, § of. that infltrurnent. Besides being a license tax, it howtax on property., Brown y., Maryland, 12 Whell,t. . .:.. a imposed ,on.a person residing and engaged in business in North Carolina. Considered as a tax on property, it is imposed, or, for the purposes of this pl"oceeding, and under petitioner's application for a writ of habeas corpus, must be JtEl imposed, on merchandise being, at the time when, under the law, it should have withiQ. the stratepf North Carolina. The requirement pithe been statllteis that within.1 0 days after the 30th. of last June petitioner should a .swornsuttement of his purchases for, months endingoJ,ljluch 30th of June.· I do not at all pass upon the question of the cqustruction of ,tb1sprovision with respect ,to wh,ether the statemeot required does or does not inel U96 any merchandise purchased before the last of June, but on that day not yet within the state.,If,itcould be inlll1Y,wlj,y material,uo;such question is raised by the On the contrary, petitioner refuses to deliver. any statement of ,purc);utses out of the state. As spIne stress seems to 'have been laid upon the phrase used in the des,crlption of the tax, it may be well to say, although the proposition ,tp, be an obvious .Qne! that the· "purchases in ,Or o.ut of the state" do not refer to the act of purcl!lising, but to the goods purchased. It seems notut all material to the characterization of the tax whether it be laid upon the amount of sales, upon the average amount kept on hand,
EX J>ARTE BROWN.
437
or, as is the case here, upon the amount of purchasesj in either case, the tax is upon the goods, and it iaof no moment whether they be valued by their purchase or sale price,or by some other standard., Either as a license tax imposed upon a resident, or as a property tax laid upon property, within the state, the imposition in section 22 is legal, unless it is in CQnflictwith some one of the provisions of the conStitution of the United States. Petitioner claims that it does so. conflict with article 1, § 8, 01.3, which provided that "congress. shnll have power to regulate commerce with foreign nations, and among the severalst/ltesj" and with article 1, § 10, cl. 2, which provided that "no state shall * * * lay any imposts or duties on imports or exports." Before proceeding to the graver question at issue, which involves an, impQrtant part of the state's, powers to raise revenue, I,will dispose oia position taken in the outset of his argument by counsel for:petitioner, which only attacks the form oLthe tax, but not the taxing power itself, but whicb, if decided in his favor, would be fatal to -the state's right ito collect, the tax BUb lite, if not decisive of the present tion. Section 22 excepts fJom taxation purchases oUarm products.from the producer. This, it is claimed, is in reality, although not ,; a discrimination in fa vor of· inhabitants of the QS against dents. The argument made is that, by reason of locality, a merchant naturally will buy a much grell.ter quantity of farm products in his OWn state than out .of it. Therefore,: it is said the law, being in this respect in its e&ectmoreto the advantage offarmers in North Carolina than out ofit; discriminates iJ) favOl of the former and against tl¥llatter. It ma.y be said with equal truth thaHt discriminates also in favor of farmers within 10.miles 0'£ the merchant as against those 100 miles from him, 'and in the case of petitioner in favor of farmers in Marion county, in South, Carolina, asagaillst those in Craven county, North. Carolina. deed, I ean Bee no. force in the position in any point of view, andnoap.. plicability in the authorities cited to sustain it. It is conceded that a apd far as its words law that professes to be upon its face go, may, when the circnmstances ,aile applied to it, be shown to discriminate, and may for that reason be unconstitutional. Such w;as the fact in the Virginia caseofBrimmerv.Rebman, 78, 11 Sup. Ct. Rep. 213, and of v. Barbtm, 136 U. S. 313,10 .sup. Ct. Rep. 862. Laws professing to be enacted for the purpose of preventing the. sale of unwholesome meat, and .in one case taxing all dressed. meat slaughtered more, than 100 miles from the place: of sale, and in the otherprohibitjng the sale of fresh meat from animals not spected by a Minnesota inspector before being slaughtered, were found to be really laws prohibiting the sale of all suchcomUlodities imported from other states, and were held to be violations of the rightQf interst.ate .commerce. But these were cases of or prohibition. The enue act of North Carolin.a contains, on the contrary ,only an exemption from taxation. I know of,no provision of thecolJstitution violated by the exemption. It does not deprive .any farmer in any other state of the privilege of selling his products in North Carolina, or tax him for
FEDERA'L RltPOR1ER;
vol: 48.
the right to ,do so.' ]1f'he iis: 'at a diaadvantage in so by :reason of, trOtll Ja,:tria:rket; like theon'$ (jf,WilroingtoD;:in·tbat state, it isadisadvantagenot Cll..usedby any statute, and is doubtless compensated bynearnes$l'tt)(SOlllS market 'mote accessible tOo bim than to his rival in the'market,(rl':Wilmingtonj thefartiler residing in that locality. Nor does itin any1vay interfere with commerce. Only a tax or a prohibitioncollld have that effect.· ',' , , Toome to,themainnptiint in the case. The law in question imposes anon-discriminatingtaxupon all merchandise in North Carolina, with tbe, ex:ceIitioIi above mentioned, whether the product of that or some other state, whetber in the hands. of a second purchaser or of the importeriiand:whethedtbeor not in: in which it was impOIlted;, that is; as it is usually tertned,in the original package. It is cont6ndedrthat, as far as it 'affects goods brought from another state in thepossessio.n of the first purchaser; in'an unchanged form, it is unconstitutwnal;Thisis not the case ofa tax upon a citiz'en of another state, imposed upon him for the privilege of bringing his merchandise into. North CaJlol'iil'Ul, and there offering it for sale, but a tax upon goods in the state, imposed upon: them in common with all other goods. A rooment's,colisideration will be enough to show that, if it is unconstitutiona1,no tll.xupon the business of amercbant can be imposed and collected in any state. The great masBof;metchants' sales consists either ofcommooitil:ls exclusivelybtought from outside of the state, and which are not produced within its limits,orof commodities in regard to which the manufactories andfanns of the state compete with those of other parts ofthe:world. If petitioner's contention is sustained, the first·class cannot be taxed at all: hands of the original purchaser. As for thesecond j t1istate has the power to· tax' such of them as have' been in paI't ,il'niilufactured 'or' produced in its limits, but not those brought from other states. The efJ't'Ct, :Wel'e such a tax imposed; would be protection, to the extent of the tax, to extra-state productions. Of course no state could aflordto imposesnch a tax. The resultwou1d be that all merchants engaged in the' exclusive busint'Ss of selling goods in the original package, would be exempted from any license tax whatever.. ,The next'resultwould be that such merchants would drive Out of businel>s,to II. very, great extent, ;all taxed merchants. The uItimateresuIti "QuId be thllt,no' tft.XOldhe' business of selling commodities WOUld: be:imposed. It :jstrue that ,article 1, § 10, of the constitution forbids'duties ordmports frOm forHgn countries, 8.lld, as interpreted by Chieflustice MARsAHAn fJroivn v.Maryland, 12 Wheat. 419, prohibits all state'taxation of eitherimportedgoods in the original packages or of the business of; selling :Sl!liohgoods; and, without tnuch consideratiun, it that the 'same results as those above stated might flow from the' in the states to tax foreign importations.· But the'<lOnditiotllfattending the sale of;suchcommodities,andofgoods brought into bmj,sMte'fromtheotherl!l; are widelyditi'erent. It would be impossible' for a merchant only in'foreign iinports in the orig-' inal paekll'ge w compete in general ibusiness with 'one who kept both for-
J£X PARTE ,BROWN.
439
elgn .and domestic articlM (or sale. Hlil. would be limited to a few of .gqods, and" with. if)' abov'e all, duties OJ) imports, ;reduce him, t<;>: aneq1Jlllftywiththe merchant hl:1yipghis.goodl'l nearerat·home, !\nd qnimportation, if they,4id ):lot put llim at,adil'ladvantJlge, in of his commodities. But, thll merchant only. in,. impor,wd .from other would have a practically unlimited range of untaxed merchandise with whicht() compete with the ta,xed merchapt. in the producti,Qns of .his qwn sw.te.' '.J;here is. additiorial to thosealfeady mentioped, that the dea,leri,n, goods were the courts to hold taxation like ,that under. consideration 'illegal. Ifcol11modities from other states in theil' original form cannot be taxed under the guise of a license, th,'thev cannot be taxed under the name (j( ap,lidvulorem tax, and,W'01J14, as long as they remained in their original in his possessIon, be pal-10f every of goodswhiob he hadbl;ought{rpmanother Elillte would .remain, as as it might be unsold, free, aot only from merchant's tax, but from the general state property tax. . Certainly, siuce Woodryff v!, Parham" :Wall. J28,llptil no st;lch. ,contention: as that made in btlhalf;of petitioner Wood1'¥ff v.!,arham wasaca,se in city of Mobile had imposed a tax ,on sales at auction and,other subjects ofta:xation., Woodruff', the plaintiff, iJ;lthe c.ourse, of bisb,usinesa sold gooclsand merchandise, the products of statelJ,other than Alabama. to 'in the 'original' packages, and pay the city tax on l'luch }lILLER, J., delivering the the "The casebefofe ,us is ssimple tax oft'sales ofmerohltndise imposed slik.e on allsl:\leamade in Mobil!), whether," · · by citizen, of, Alabama or ofanotl)er and the goods sold are tbepl'Qduce or some otber·. ',Chere is no, a.tteUlpt to discriminate injuriously against ,the producls of otberstates 01' the rights of their citizeils. ahd there .fs therefore not an attempt, to fetter commerce amongthe states.or'tq deprive the. citizens of other states of any privilege or immunity' Possessed by citizens of A!labama."
regard
.of
an
, ,'li Machine Co. v. Gage; 1Q.0 U.
67G. it decided, state lawiIUPosing an annual tll,x on all of without teKard to the place of,tnanafactnre, was not in violation oithe constitution. SWAYNE, J., after review cases, says: "In all cases of this class itis a test question whether:there is anydiscrimination in favorQ! the Ilt$l;eQT of, t.he citizena of state Which enacted the law. When there is such discrimination is fatal. In the case beforeys the statute in question makes 1}0 such discrimlrmtion. It applies ali\teto sewingrriachihes manUfactured in the state and out of it. Theexliction is not an imusual'or unreasonable one.' The putting all such machines upon the same; footing. bad an unq,uestionable right to iinp08e the burden."
a
In Hroumv. Houstoo, 114 U.S. 622,5 Sup.Ot. Rep. 1091,(1884,) that a state .of six o.n -sltuateg In the state of <l9al In PennsylvE!-Dla, .and it, in Hata' t,q , '.Att,he .of it " \ '
440
FEDERAL REPORTER, Yot
48.
had just ..ed from' Pittsburgh, and was in the hands of plaintiffs' agents,lrlloa,t intlieMissi'sslppi river in the same bOats in which it had held for sale. by the boat-load. The court, by BRADLEY, J.,aftei'stating, on the aut.hority of Woodruffv. ParMm, supra, that the term "irnport" did not apply, because article 1, § 10, affected only foreign importations, and not articles carried from ()De state into another, says: ' , "It Dot a,tWe imposedJpncosl as a foreign product, or as the product of anoiher BtlItetban Louisll1na;nor a tax imposed wbile it was in a state of transit tbrouglhbat statetosome other place of destination·. It was imposed after the'(lOal: had:: arrhed' at its destinatlon,and was put up for sale. The coal had to, ,its place of, restfOl; tinal disposal or US!!, and was a cOm,plOdHy in the market of Ne\YOrleans. ;.... ... It had bec0llle a part of the of proverty in ,the state, apd it was taxed for the current year, as al.! other property 10 the city of New Orleans was taxed." "With the exception of goods imported from fdte'gncountries, still in the original packages, and goOdilln tr&1Iillt to some other place, Why may not [a state aslIessor of tnxell]8sSeBS altproperty, provided the assessment be a general one, without dis,crimination betwl:en.the goods of different states?:' i'The Parham, Machine Co; v. Gage, and Brown v.Hdustfm, 'liUPf.a;are 11lll1ee'ent,and are'allcases in which the merchan'djse taxed lit the' respecti{re state autlior;ities was, at the tirpe the tax was hnposed, in the hands of'the'importer into the state, in a condition which 'had not. been' changed' since; its importation. Woodruff v. Parham and Machine V. Gage were license ·. ' Brown v. H.01.t8ton was a general property, tax. w:hich fell,' as' is nQtedl:>y 'GRAY, J;, in the dissenting opinion' in Leisy y:llo/rdin, 135 U. S.151; 10 Sup: Ct. Rep. 681. on the property, the right 'of tbe,stateto tax in dispute, "in its orig.'Jnal condition land original package.'·iThey are therefore authorities 'irJ. ·point upon petitioner's c6II tention,. and, if .are conclusive ,9f the lite. It counsel that they have been Di.8t., 120 S.489, 7 Sup. Ct. Rep. 592, an.dLek!J,v.. ,Bardin., 135 U. S. 100, 10 Sup. Ct. Rep. 681j ,and thll:t under the present rulings of the supreme court there is prac'nenHy no diffetence in effecfupon thestate's taxing 'power between the . provision iir the constitutiolfprohibitingduties on imports and that givcongress the power to'regulate commerce among the several states. This argument is drawn from the opinion of Justice BRADLEY in the first oftha two last-mentioned cases and that of the chief justice in second. is, strongly urged," says BRADLEY, iJ., "that no discrimination is rilade between domesticaild foreign drummer:s;but'that does not meet Illterstate' bommerce can'n.ot be taxed at alL" 120 U. 7 Sup. Ct. Rep. 592. "Underou!: decision in Bowman v. R«ilway 00., 125 U. S. 465, 8 Sup. Ot. Rep. 689, they had the right to im,p,ort this beer into the state, and, in the view we have expressed. they had the'right to sell it,. by which act alone 'it would become mingled in the common mass of. pJ,'operty in the state. .' Up to that point of time we hold. that, in the absence of congressionnl permission to' do so, the state .had no power to interfere, 'by' seizure or any other action, in prohibition
EX
r ARTE
441
of importation and sale by the foreign or non-resident importer." FULLER, C. J., in Leisy v. Hardin, 135 U. S. 124, 10 Sup. Ct. Rep. 689. The argument for petitioner is this: Under the decision of the supreme court in Bowman v. Railway 00.,125 U. S. 507, 8 Sup. Ct. Rep. 689, cited by the chief justice, federa,! control of interstate does not stop at the state line, but goes with the goods which are ita subjects to its place of destination within the state. Under Lei$y v.Hardin, 8Upra, which goes a step further, 'interstate commerce includes the right to sell such merchandise within the state, and the state cannot interfere with such sale in any, way. The transportation into and sale within a state being thm held, as petitioner contends, to be interstate commerce, neither of these acts can be taxed, for, as is decided in Robbinll v. Taxing Dist., 8Upra, interstate commerce cannot be taxed at all. The case of Robbins v. Taxing Dist. is so recent a one, and is so well known to the profession, that its .facts may be very briefly stated. The plaintiff, a ciiizen of Ohio, was arrested for the act ·of soliciting trade by the use of samples for the Ohio firm of Rose, Robbins & 00., of which he was an agent, without taking out the state drummer's license. It was held by the supreme court, the chief justice and two associate justices dissenting, that a state could not levy a tax or impose any other restriction upon the inhabitants of other states for selling, or seeking to sell their goods in such state before they were introduced therein, even though an equal tax shotlld be im posed upon inhabitants of the taxing state. In his dissenting opinion WAITE, C. J., says: "1 am unable to see any difference in principle between a tax on a'seller by sample and a tax ona peddler; and yet I can hardly believe it would be contended that the proVision of the statute now in question, which fixed a license fee for all in the district. would beheld unconstitutional in its application to peddlers who came with their goods from another state, and expected to go back ', ., " · I quote from the dissenting opinion to show the limits of Wal! actually decided. The court did not hold that a merchant bringing his goods from another state into Tennessee, for sale there, could notbe taxed, but only that, he could offer them for sale there, without ,being compelled to pay for that privilege,and that he might do so by an agent and by the use of samples. To guard against any misconception of the extent of the decision, the judge rendering the prevailing opinion expressly states that if the goods were in the state, and part of its general mass of property, they would be liable to taxation in the same manner as other property of similar character. "When goods are sent from one state to another for sale, or in consequence of a sale, they become a part of'the general property, and amenable to its laws,provided that no diserimination be made against them as goods from another state, and that they be not taxed by reason ofbeingbro\ight from another state, but only taxed in the usual waY' as other goods are. But to tax the sale ofsU9h goods, or the offer to sell them, before they come into the state is a very different thing, and seems, to us clearly a on inter-
442
FEDERA:ft/'IUi:POg'J:!1i:R;
state coimrietce:", Rdbbi1i$vJ:Ta:ting Dist".:,,120U. S; 497" 7 Ct., Rep. 598'/,' It. is:in' the.ne:x.t' paragraph, in'answer to the· argutuent ,that TEmtilJssetJ and tlhose: other states were taxed: alike, that JustlciBR!JDIlEOY "BnHhat 'd06snoHneet the difficulty. 1nterlltattlctlijimercecM\not be ta!lted ata11, even though the same amount of taxt;lh<)1.ild: commerce)' It needs no argument to show th&b' to in the'last sentence did not incildde the selling by the original importer of goods brought into the state by him, or BRADLEY: adhered in the drummer's case :tothe' opinion 'Tendered by him in Brown v;, Houston, that such goods are taxablehy a state;' , In deciding Leisy v. Hardin the supreme coun put its decision on the interstate Mmmetceprovisioll'of the constitution, and held that any interference, :by;. sei2ureor by'any other action, in prohibition of the sale of gdods "bytbeir non·reaident importer was a regulation of state commei'ee?''butdid not decide that a tax was such an interference. The fair inference' from the one case is thatanon.discriminating tax on commodities bttltlght into a. state by a non.resident is not a tax on interstate commercerttndfronltbe other 'that the power to sell is an adjunct of, and necessarily 'involved in, interstate commerce, which may not be anterfered with'inthe \vay in which t!lestate legislature of Iowa has attenipted to do. 'The reasoning in the two cases does not conflict. , Counsel for petitioner strongly urged the decision given in this circuit in Fertiliz'ingOo. v.Boord Of Agriculture, 43 Fed. Rep. 609, as conclusive in his favor. ThaLwas a case' i1;l which the state of North Carolina had provided that ·1'10: commerciaUertilizersshould be 80ldor offered for sale ';lMil'the manufacturer or ip1porter should obtain a license from the which, he sbould)ay a privilege tax of $500 'per "annum ftil' each, separate" brand. The opill ion !)f. the court was rested, 'not upon article 1, § 10, of the constitution, bUt upon article 1; '§'8, "the court that :it w8s'immaterilll1 whether or not it was with'io· the meaning,<Wthe coristitution an importtax,as it was olearly a tax 'ijn Cbminerce. 'To "the ,opinion' rrgivEin in that decision I still andfOl'tbereallolls'givenin it; The point involved'was to a a new: ooe,and it was nooessary: to resort for its elufrom what appeared to the court to 'be the of lidch( ,taxations as that undetconsideration upon eommerce betWeen:the,states. ' Speaking-to this point the court said: "Ktbe ' : ,,),,; ' i ' · , , ' · : : ,
of
a, state to 'tax ,all importil from other states equa'( taxation were laid upon' the same articles if 'vr6tluced 6r 'm!J.deln the state; a state would, practically haVe the power to prob'i'bit the ofauy'article notmllde in it" N ortb Carolina might Jiavr importation of cloths and MllssacQQ!lett$ that of cottop if;l ,a license tax in ,,' (flo.th,sha.ll be u,ntl.l the Importmg 'tile same shall fir!lt' oQtalna'Iicense therefor, an!! {Jay a talC of five hundred "dollai'so' upoD'4liti l diffel'ent brands of tobaCcolllight be levied <'.
" ,:
4:43 in any state that dges ;l)ot manufQCture tobacco. · · · It must ,be evil. that a req uire.ment()f of . on., Jmported andh!ome article,would be no Pl,'o.te.ction seriously check if it did not destroy coinmerce between . fbestates. 48 l!'ed. Rep. 613. ,. , ., : .,' -, . . .
.:'
'.'
';
. The fertilizer. tax levied 'Upon :tbeselling: or :offering for sale of fertilizers, was,. as far aSlt affected or offering to sell such commodities without btinging tbeminto the tltate, precisely within the decision of the drummen's case. It wasfunher in effect, as;abbve stated,'one of a class of discriminating:taxE'B, and!to.uphold.it would'be to admit a principle of state taxation allowing each state to protect it$ own llianufacturesfromthe competition ofnon-s.tatemanufactures. The court, in considering it, was not limited to the aot itself, but could avail itself of the knowledge which was accessible in ('{'mmon with all tbe\vurld,of the state:of trade andmanufactura.within and without North Carolina; or, in other words, (take judicia,l,notice of the· fact,s bearing upon the taxation in question, and could from these facts ascertain the character of the impost in question. Leaving out of consideratioIl all taxes directly or indirectly imposed upon act.s of trade between the states, (which are in every case inadmissible,) and considering only tax,ation upon merchandise or business not laid upon it as interstate or foreign to the taxing state, but yet objected to as obpoJ>.ious to the constitution because it, in effect, affects commerce between the states, we find that the test of constitutionality is the absence or existence of discrimination·. ,Machine Co. v. Gage, Brcrwn v.Houston, and other cases already cited. But the mere fact that an equal tax is laid upon the commodities or business of thehQme and foreign state is not conclusive of absence of discrimination. Robbins v. Tarciny Di8t., 8upra. When.ever the effect of a upon .aparticular cOx:ninodity is to protect .the productions of the taxing state from competition with such commodity, or to evidently impose the burden of the state revenue on goods produced outsidtdhe taxingliltate, and to favor home productions generally, it that it is an interference with interstate .commerce. ShQqld a tax be imposed upon a c.ommodity for of preventing its sale at allwithin the state,---:-for instance, should a state a prohibitive taJi; on spirituous liquors as should stop their sale,-the case would appear to come within the mischief and reason of Leisy v. Hardin, and to be unconstitutional. A strong argument niight 'be made against all state taxation of special objects of merchandise, on the ground that the power of taxation, being in its nature unlimited, the power to tax involved the power to prohibit; and also for thereasc>D.s urged by NELSON, J., in the dissenting opinion in Woodruff v. Parham, that such taxation involved generallythe'power to discriminate info.vor of home manufactures. But no. argument of that kind applies to the case of the application for a writ of habC(l8;corpus now under. consideration. In no manner can a general tax upon all merchandise, which this tax in effect is, be mad,e discriminating., I do not regard the single exception in the statute as material. SUch tal\.ation cannot be used to favor .thlJ manufacture of particular ar-
FED;EltAL REPORTER,
tides, or ,or, home' articles ingeneral,or to in any way check the business ofthe sale' brought from. other states in trade.. It is not laid upon foreign goods as such. LIt 'simply'lays an equal tax upon all North Carolina merchants,aft'ecting alike their home and foreign trade. The impositionofthet&xis'pne within the power of the state, and violates no provision of tlieoonstitution ofthe United States. I have not'inquired into the question of whether or not this application isprematlirely brought. 'The, petitioner is imprisoned, not for refusingtp,pay a tax, but for the preliminary matter ofrefusal to make a sworn statement of his purchases. I simply note the fact. The de· clsion is placed,on the constitutionality of the law, the matter upon which I un.tlerstand both parties (the state and petitioner)deeire an opin. ion. The petitiort", showing upon its face that applicant is entitled to a writ denied.
WHITNEY !1. BOSTON
&
ALBANY
R. Co. et al.
WflrCutt Oourt;D. Massachusetts. December 14, 1891.)
Letters patent No..259,958, granted June 20, 1882, to Baxter D. Whitney for im:provements in wodd-planin/r machines, were for a pressure-bar supported and ." guided prc>).eptj.ng from it,sends,and workingin'curved grooves or pad, form,, concentric W'ithtbil journals ,ot the cntter cylinder, with an elastic ing a supplemellta.l !flexible foot 'and distributive pressure regulator j the pressurebar on the rey or side the cutter cylinClE;lr for the purpose ofliearlrik lipon the lumlier, and holdulg\t firmly to the bed-plate. Beld, t4at l: : ,this is'infringed; by a machine wlii"b has a tlrbllsure.ba'r'with durved guides engag. . '. lng. with; g:rOOVIl,Il rOllnd ,t/1e ,boxes of the cutter cyl'-inder; 8tieldfng- pressei--foot'conslsting of an elastic plate, having a bearing surl face adllipted,t() Ilegulihethe pressure to' correspond w1th'the'val'ylng thicknesses ( the WOQd,i.: 1lJ:I.e of a llexible .pad with lIouxiliary.support to pre." . 'venl. undue aetlect,!on. 9,S.a.:ME-SUIT FOB INlrRiNGEMENT-l-INTERLQC(;TORY DEimEE. :: 'Where i/l-frl.ngement of a patent is brought,aga.inst the users of a single machinewJ!o purchlllled it from toe manufacturers, and who have nothing H to do with 'its' '06illltruction.tlle interlocutory decree for plaintiff will be for an , a.ccount ,! . ' . ,
1.
PATENTS FOR lliVlll1V\I'IONS-INFRINGEMENT-WOOP- WORKING MACHINERY.
D.Whitney against Boston & Albany othexa for the infringement of a patent. Dp,vid Hq,ll Rice,: for com ,Parkinson .£to. j>arkinson, fQf defendants.
tn :Equity.
of ,wood-working plRchiner.y, took out a patent (No. 259,958) for improvements in machines.' 'I'he invention, so far as it is covered by the second :and third claims of the patent,-the only claims which are in controversy in this 8uit,-consists of a presser-bar supported and guided by curved .levers projecting from its endsiand working in
NEJ.sON, J., ,Onthe 20th of June, 1882, the plaintiff', a manufacturer