per ton upon fertilizers, to pay the cost of inspection, was held to be reasonable and proper. The court said that, as it was competent for the State to pass laws of this character, the requirement of inspection and payment of the costs did not bring the act into collision with the power vested in Congress. The right to make inspection laws was not granted to Congress, but was reserved to the States, subject however to the paramount right of Congress to regulate foreign commerce and among the several States. If the charge should exceed what was necessary for executing the inspection laws, it would be an unauthorized interference with the free importation of goods and therefore void. But if the law is really an inspection law the charge fixed by the State must stand until Congress shall see fit to alter it in its paramount power over commerce. This right to make inspection laws applies to commerce between the States as well as to foreign commerce, although the words imports and exports in the same section relate only to foreign commerce. The scope of inspection laws is not confined to articles intended for exportation, but applies to importations and articles intended for domestic use.1 1 Neilson v. Garza, 2 Woods, 287. As to when the court will take judicial notice that the amount charged is unreasonably large for an inspection charge, see American Fertilizing Co. v. Board of Agriculture of North Carolina, 43 Fed. Rep. 609. CHAPTER IV. REGULATION OF COMMERCE CONTINUED. § 130. Era of discriminating State taxation. 131. Privileges and immunities of citizens. 132. Any discrimination in State taxation in favor of citizens or residents as against non-residents is interference with com merce. 133. Discriminating taxation condemned in State courts. 134. Discrimination in taxation in favor of products of State as against products of other States invalid. 135. Supreme Court in Welton v. Missouri. 136. What constitutes discrimination. 137. Discrimination must relate to interstate commerce. 138. Taxation of commercial travelers from other States nvalid. 139. Supreme Court in Robbins v. Shelby County Taxing District. 140. Interstate commerce cannot be taxed at all. 141. Doctrine of Robbins v. Shelby County Taxing District reaffirmed. 142. Supreme Court in Brennan v. Titusville. 143. Taxation of commercial brokers. 144. Supreme Court in Ficklen v. Shelby County Taxing District. 145. Stockard v. Morgan on commercial brokers. 146. The form of commercial agency immaterial. 147. Only interstate commerce agencies exempt. 148. Sale of goods in State subject to taxing power of State. 149. Discrimination must be more than incidental disadvantage. 150. Tax upon peddlers without discrimination as against residents or subjects of other States is valid. 151. Definition of peddler. 152. Peddlers and drummers. 153. Licensing under police power. 154. Police power cannot interfere with interstate commerce. 155. Supreme Court not concluded by title as to purpose of act. 156. Is license act void in part, void in toto? "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Const. U. S., Art. IV., Sec. 2. § 130. Era of discriminating State taxation. The enforcement of the national control over interstate commerce has been prolific of litigation, both in the State and Federal courts, arising out of the conflict between the national supremacy on the one hand, and the authority of the States to impose business, occupation and so-called privilege taxes on the other. The clamor of local merchants for protection against competition from other States has been potent with State legislatures, as it was in the days of the Confederation before the adoption of the Constitution, and the result has been the enactment of discriminations in taxation favoring the citizens and the goods and products of the State as against the citizens and products. of other States. During the long period when the Supreme Court gave no decided opinion as to the supremacy of the national power in interstate commerce, such discriminating statutes multiplied, until, in one form or another, they. were on the statute books of nearly every State in the Union. Thus Justice Miller said in 1889: 1 66 Notwithstanding for nearly one hundred years we have had in the Federal Constitution the declaration that Congress shall have power to regulate commerce among the several States, there are at this hour upon the statute books of almost every State laws violating that provision; and there is no doubt that if that clause were removed tomorrow, this Union would fall to pieces, simply by reason of the struggles of each State to make the property owned in other States pay its expenses. It was this tendency of each State to support its government out of taxes levied upon the property of other States, or on the produce or 1 Lectures on the Constitution, p. 81. merchandise which must go through one State to another, that more than any other one thing compelled the formation of the present Constitution."1 The declaration of the Supreme Court in the cases already referred to, that commerce between the States must be free from State control or interference, was announced at a time when changed economic conditions made intolerable the discriminating legislation of the States. The extension of railroad systems over the country, the promotion of facilities of intercourse and transportation, unknown at an earlier period, extended the market available to producers. Instead of the buyer seeking in his own locality the manufacturer or jobber, an army of commercial travelers covered the country, bringing the goods of the manufacturer and jobber to the door of the retailer or consumer. The methods of business were revolutionized. § 131. Privileges and immunities of citizens. Where citizens of other States are concerned, not only is this discrimination in taxation in favor of citizens or residents of the State an interference with commerce, but at this point the comprehensive provision of the Constitution for the regulation of commerce is reinforced by the specific direction in the Constitution that citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." This specific protection accorded to citizens of other States however, while it is included in the comprehensive guaranty of national control over commerce, falls far short of affording the necessary 1 Justice Miller quotes from Mr. Van Buren in a speech in the Senate in 1826: "There are few States in the Union upon whose acts the seal of condemnation has not from time to time been placed by the Supreme Court. The sovereign authorities of Vermont, New Hampshire, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, Missouri, Kentucky and Ohio have in turn been rebuked and silenced by the overruling authority of this court." remedy. The right to carry on interstate commerce and to be free from discriminating restrictions therein is not limited to citizens. All non-residents of the State, and foreign corporations, which are not citizens within the meaning of Article IV, Section 2, are entitled to the protection of the Constitution in so far as they are engaged in interstate commerce. In the earlier cases however, before the position of the Supreme Court in regard to the national control over commerce was distinctly declared, both provisions of the Constitution were invoked, and in some cases the judges of the Supreme Court have themselves differed in the grounds of their opinion as to the invalidity of such legislation, some assigning as a reason the violation of the privileges and immunities of citizens of other States and others the interference with commerce.1 Later decisions of the court however have declared all such discriminations void on the ground of interfering with commerce. § 132. Discrimination against non-residents an interference with commerce. This was decided in the case of Ward v. Maryland.2 The statute required all traders resident in the State to 1 Crandall v. Nevada, 6 Wall. 35, supra, § 20; Ward v. Maryland, 12 Wall. 419. Thus Justice Miller, who delivered the opinion of the court in Crandall v. Nevada, decided in 1867, in holding a State tax on passengers passing through the State invalid, placed his decision on the ground that the tax was inconsistent with the relations of the State to the Federal Government, see supra, and doubted whether it could be avoided under the commerce clause; Justice Clifford and Chief Justice Chase based their opinion distinctly upon its being void under the commerce clause. In his lectures however delivered in 1889, Justice Miller speaks of the case as illustrative of the national regulation of commerce. See Miller on Const., p. 453. 2 12 Wallace, 419, reversing Ward v. State, 31 Md. 279. |