Bates, Chancellor,
delivered the opinion of the Court. The Supreme Court of the United States have decided in Crandall v The State of Nevada, 6 Wallace, 35, that the several States of the Union have not the constitutional [190]*190power to impose a tax upon inter-state travel. In this conclusion the Supreme Court was unanimous. The authority of the decision is not impaired by the fact that the judges assigned different grounds for their respective opinions. Some of them considering that such a tax is a regulation of commerce, and prohibited to the State Legislatures by what is known as the commercial clause of the Federal Constitution, and others, (who constituted the majority of the Court,) holding that the tax is an infringement of the right of the Federal Government to the service of its citizens, free from all restrictions upon their facilities for travel. Also an infringement of the citizen’s right of free transit between all parts of the common ( country, as a right inherent in a national citizenship and (protected by the constitution. The rule adjudged in the FTevada case is the supreme law of the land, and obligatory upon this Court. Waiving, therefore, a discussion of the grounds of that decision, we proceed directly to the main question in controversy, that is, whether according to the true construction of the act of August 11th, 1864, the tax is imposed upon the business of the carrier, measured by the number of passengers transported, or whether upon the passenger, to be collected for the State by the carrier. If it be the. latter, then under the ruling of the Supreme Court, the act must be held invalid so far as it operates upon persons entering into, departing from, or passing-through the State. With respect to its operation upon persons traveling between different points within the State, no question is made. It may as well be observed at this point, that no argument in support of the act can be drawn from the fact that it operates as well upon our own citizens traveling wholly within the State, as upon the citizens of other States passing into or through its territory. If the Legislature have not the constitutional power to tax a particular class of passengers, plainly that power cannot be derived by including under the tax law another class of passengers who may constitutionally be taxed. Legislative acts to the validity of which the question of discrim[191]*191ination becomes material, are those which deal with a subject matter fully within the constitutional power of the Legislature of a State, but deal with it in a mode affecting unequally its own citizens and the citizens of other States-, contrary to that clause of the Federal Constitution which secures to the citizens of each State “all privileges and immunities of citizens of the several States.”—(Art 4, Sec. 2d.) As if citizens of other States should be placed upon an unequal footing with our own citizens under laws for the administration of public justice, or touching the descent of real estate, or the distribution of the personal estate of intestates; or, as if in the taxing of lands situated within the State, non-resident real estate owners were taxed more heavily than our own citizens holding lands. But in the present case the Supreme Court having decided that inter-state travel is beyond the taxing power of the State, the only question is whether this act undertakes to tax the forbidden subject-matter; and it is quite immaterial whether the act also operates upon travel within the State, a subject-matter under State control.
We will now examine the provisions of the act of 1864. It is true that the tax is declared to be,a tax upon the carrier, that he is required to pay it into the State Treasury, and he is to pay it at all events, whether it be in fact collected out of the passenger or not. The provision is, (Sec. 1.) that “every person, corporation, or association or company “of persons not a corporation, engaged, or that may here- “ after engage in the business of transporting or carrying “passengers by steam power, whether on land or water, in, “through, upon, over or across any portion of this State, or “ within the territorial limits of the same, shall on the first “ day of October next, and thereafter monthly, on the first “ day of each month, or within five days thereafter, pay “ into the hands of the State Treasurer, for the use of the “ State, a tax at and after the rate of ten cents for every “ passenger so transported within this State during the “ month then just ended.” Did the act stop here, or add only such provisions as should be requisite for ascertaining [192]*192the number of passengers and for enforcing payment by the carrier of the ten cents per head, then the tax might be treated as one imposed upon the carrier. But there are other provisions in the act, by the operation of which the tax although in terms levied upon the carrier, was nevertheless in the contemplation of the legislature and under the authority of the act, to be drawn from the passenger, so as to leave no actual charge upon the business of the carrier. This makes it in substance and effect a tax upon the passenger.
Let us look closely into these provisions:—First,observe the 4th Section. This section confers authority for collecting the tax in all cases out of the passenger; that is, it confers the power to do so upon a class of corporations previously.restricted by their charters as to the amount of tolls to be charged for the carriage of passengers ; and it recognizes the power and sanctions its exercise on the part of all other corporations and carriers which had not been so restricted. The section runs thus:—“Incase there be “ in the charter of any corporation liable to the provisions “ of this act, any clause or provision so restricting the “ amount of toll to be charged for the transportation ot “ passengers, as that this act would according to the “ present rate of charges by the said corporation, operate “ unjustly against it, then it is hereby declared and enacted “ that the said corporation shall have the right to increase “ the said toll to the amount of the tax herein provided “for.” How, the manifest purpose of this provision and its direct effect is to carry the tax over from the carrier on whom the first section left it, to the passenger. It declares that to leave a corporation disabled by reason of any existing restriction upon its power to charge tolls, from adding the ten cents to its fares, would “ operate unjustly against it, ” and so, striking away all such restrictions, it leaves all carriers armed with authority and having its express sanction to draw the tax out of the passenger, as being his proper charge or burden, and not theirs. The want of power in a corporation to collect the tax from [193]*193the passenger would, indeed, “ operate unjustly” against the corporation, if it was the passenger who was intended to bear the tax, but certainly not so, if the tax was considered the carrier’s own burden. In the latter case plainly the injustice to be prevented would be, not the absence of power in some corporations to collect the tax from the passenger, but the exercise of such a power by any corporation ; and in order to keep the burden where, upon the plaintiff’s theory, it was intended to rest, the act should have extended to all carriers the restriction against adding it to their fares, rather than have removed it from those already subject to it. It is impossible not to see disclosed on the face of this act, that the proposed tax was expected to raise a gross sum too large to be borne by the railroad corporations under the then existing rates of fare which had been adjusted to the ordinary cost of transportation, and hence the care manifested to connect with the exaction of the tax from the carrier authority for its collection out of the passenger—this power being a part of the machinery devised by the act for raising the revenue. The position of the carrier under this law is substantially that of one to whom public taxes are farmed out, an'd who undertakes by contract to advance to the Government a required revenue, with power by suit or distress to collect the like amount out of those on whom the tax is laid. The only imaginable difference is, that in the case of taxes farmed out the obligation to account to the Government is voluntarily assumed by contract, and not imposed by law as upon the carrier under this act; also that different means are provided for raising the tax out of those ultimately chargeable with it; 'but the mode of collection under this act is none the less effectual, but far more so than by suit or distress, for the tax is exacted from the passenger before he is allowed to enter a car or steamboat.
Another provision of this act very significant that under its operation the passenger was to be the taxable, and the carrier a collecting- agent only, is that clause of Sec. 1. which excludes soldiers and sailors of the U. S. [194]*194from among the number of passengers with respect to whom the carrier is required to make return and pay the ten cents per head. We cannot read this clause otherwise than as an exemption of these two classes'of passengers from a burden imposed upon passengers generally, a burden to which it was felt to be improper or inexpedient to subject the transportation made at that period, of large bodies of soldiers and sailors in the service and defence of the Federal Government. Considered as a tax upon passengers, there were cogent reasons for exempting from the burden of it these classes of passengers, or the United States Government as chargeable on their account; but upon the theory that this was a tax upon the business of the carrier, the number of passengers being taken merely as a measure of the business, no satisfactory reason can be assigned for exempting this branch of the business, unless soldiers and sailors were carried without charge, but which does not appear as a fact.
Still another clause of the act bearing to the same conclusion, is that proviso of the first section which imposes only one tax in respect of a passenger traveling over several connected rail roads, and charges the payment of that one tax upon the company which first receives the passenger. If the tax be considered as laid upon the passenger, to be paid for the privilege of making one journey by the public modes of travel within the States, this is a provision both just and convenient; but it is not reconcilable with the theory that this is a tax levied upon the railroad company for the privilege of exercising a public employment, in which aspect it should equally attach to each company excercising such privilege, whether the passenger conveyed by it was received from another company or not. Nor is this clause satisfactorily accounted for, consistently with the theory of the plaintiff, by the suggestion made arguendo that all the rail road companies then operating within the State were under the management of one corporation, the defendant in this cause. Our railroad system at the passage of this act embraced three compa[195]*195nies then operating, viz:— this defendant, the Delaware Rail Road Company, and the Junction & Breakwater R. R. Co., besides some other roads, projected but not constructed. Of the three Companies then operating, the Delaware Railroad was managed by this defendant as lessees under a lease which kept the business and interests of the two companies as separate and distinct as if the Delaware Railroad Company were operating its own road. The Junction & Breakwater Railroad was operated by this defendant, the Philadelphia, Wilmington & Baltimore R. R. Co., under contract. Between this defendant and the two Railroad Companies referred to, there was no consolidation of business or interests, and the arrangement between them afforded no sufficient reason for exempting either of the companies from a tax intended to be laid upon the business of railroad transportation.
Passing now from the consideration of particular clauses in the act to a view of it in its entire scope and bearing, we are unable to discern wherein its operation upon the passenger differs from that of an act which should in direct terms levy the tax upon the passenger, and require the carrier to collect it, and pay it into the State Treasury, after the frame of the Revada Act; and when we speak here of its operation upon the passenger, we refer not to any mere incidental and remote- consequence of the act, hut to the result contemplated by and provided for in the act itself. It matters nothing whether the tax be in terms imposed upon the passenger to be collected by the carrier, or he imposed upon the carrier with power, given or recognized and sanctioned" to collect it out of the passenger. The difference is one of phraseology merely, not varying in the least degree its effect upon the passenger. Either way there is to he exacted from him, under authority of law, over and above the ordinary charge for the carrier’s service, ten cents for the use of the State, to pass it is true through the hands of the carrier, but without becoming any charge upon the carrier’s business, unless it be volun[196]*196tarily so made by a waiver of the power to collect it out of the passenger, a very remote possibility. IsTow, it need hardly be said that the Legislature cannot enlarge its powers by mere phraseology ; that a revenue measure so constructed as to draw the required revenue ultimately out of the passenger, cannot be rendered valid by calling the payment of it a tax upon the carrier whose whole connection with it is to pass it into the Treasury of the State. dSTo form of words can save a statute which in its effect deals with a prohibited subject-matter. If constitutional limitations might be thus evaded, they would become wholly illusory and worthless.
It is important here to notice with what care the Supreme Court of the United States in applying the limitations of the Constitution to legislative acts, have always looked into the substance and effect of such acts, quite beyond their form or phraseology. We may take a few illustrations: In Brown v. Maryland, 12 Wheat. 444, the State law required the importer to take out and pay for a license to sell imported goods, and the question was whether such a requirement was in conflict with that clause of the constitution of the United States which prohibits a State from laying any impost or duty on exports or imports. It was argued that this was not a tax upon the article imported, but upon the occupation of the importer; that the State had unquestioned power to tax all occupations, and that this act by its direct effect did nothing more. C. J. Marshall thus emphatically refutes the argument. “It is impossible,” he says, “to conceal “ from ourselves that this is varying the form without vary- “ ing the substance. It is treating a prohibition which is “ general, as if it were confined to a particular mode of “ doing the forbidden thing.’ ‘ All must perceive that a “ tax on the sale of any article imported only for sale, is a “ tax upon the article itself.’ * * * ‘It must add to “ the price of the article, and be paid by the consumer or “ by the importer himself in like manner as a direct duty “ on the article itself.’ ‘This the State has not a right to do [197]*197“ because it is prohibited by the constitution.” In Almey v. The State of California, 24 How. 169, the question was whether a stamp duty on bills of lading for gold and silver transported from that State was a tax on exports. The Supreme Court so held, C. J. Taney thus expressing himself. “ But a tax or duty on a bill of lading, although differing in form from a duty on the article shipped, is in “ substance the same thing.” Speaking of the necessity of some such instrument as a bill of lading to commercial transactions the chief justice adds, “ a bill of lading there- “ fore, or some equivalent instrument of writing is invar- “ iably associated with every cargo of merchandise exported to a foreign country,and consequently a duty upon “ that is in substance and effect, a duty on the article “ exported.” In the Passenger Cases, 7 How. 283, one of the questions was, whether a provision in a statute of Massachusetts requiring the master, owner, consignee or agent of any vessel engaged in foreign commerce, to pay on account of every alien passenger landed a certain sum into the Treasury of the city or town where the vessel should land, was a tax upon commerce. The majority of the Court so held, and Mr. Justice Grier (p. 188,) with his characteristic force, thus asserts the duty of the court upon such questions, to consider the effect, rather than the form of legislative acts. “It is” he says, “a just and well “ settled doctrine, that a State cannot do that indirectly, “ which she is forbidden by the constitution to do directly. “If she cannot levy a duty or tax from the master or “owner of a vessel engaged in commerce graduated on “ the tonnage or admeasurement of the vessel, she cannot “ effect the same purpose by merely changing the ratio “ and graduating it on the number of masts or of marines, “ the size and power of the -steam engine, or the number “ of passengers which she carries. We have to deal with “ things, and we cannot change them by changing their “ names. Gan a State levy a duty on vessels engaged in “ commerce, and not owned by her own citizens, by chang- “ ing the name from a duty on tonnage to a tax.on the [198]*198“ master; or levy an impost upon imports by calling it a “ charge on the owner or super-cargo, and justify this “ evasion of a great principle by producing a dictionary or “ a dictum to prove that a ship captain is not a vessel, nor “ a super-cargo an import?” In the Hevada case the tax was levied in terms upon the passenger, so that no question was entertained by the court as to the construction of the Hevada statute. Lest, however, the judgment of the Court should be supposed to rest upon the directness of the statute, they say; (p. 39,) “ we should be very reluc- “ tant to admit that any form of words which had the effect “ to compel every person traveling through the country “ by the common and usual modes of conveyance, to pay a “ specific sum to the State, was not a tax upon the right “ thus reserved.”
We have in the Passenger Gases a construction given by the Supreme Court to a law of like structure with that before us. One of the statutes drawn into question in those cases was a health law of Hew York, by which the master of every vessel arriving in the port of Hew York from a foreign port, was required to pay to the health commissioner a certain sum for himself and for each passenger ; and by a subsequent section of the law a right was given to the master “ to demand and recover from each person the sum paid on his account.” In the opinions rendered in those cases, both by Judges of the majority and by those dissenting, this tax is treated as a tax on the passenger, the difference between the Judges being whether or not as such, it was a regulation of commerce in conflict with the commercial clause of the Constitution. This construction of the Hew York Act is especially observable in the opinions of Justice McLean, p. 404, Justice Wayne, p. 411, 412, 421,.Justice Catron, p. 444, 448, and C. J. Taney, 483. The Chief Justice says of this law, “ the tax is imposed on the passengers in this case” “ clearly and distinctly; for although the captain who lands” “them is made liable for the collection, yet a right is” “ expressly secured to him to recover it from the pas-” [199]*199“ senger.” Now, comparing the New York law with the act under consideration, it will be seen that they are in substance the same. In both the tax is to be raised by the same sort of operation, with two incidental differences only ; these being rather the more stringent upon the passenger under our law. Under the New York law the master of the vessel was required first to pay the tax, with the right afterward to sue the passenger. While under our act the carrier is empowered to collect the tax before paying it over, and to collect it by means far more effectual than suit. This course of decisions indicates it as the settled judgment of the Supreme Court that statutes are to be construed, as well upon questions of constitutional power as for other purposes, according to their substance and effect, without regard to mere form or phraseology. Applying this test to the act before us, we consider that it taxes the passenger rather than the carrier, and under the rule of the Nevada case we must hold it to be inoperative and void, so far as it affects passengers entering into, departing from, or passing through the State.
Gilpin, Chibe Justice.
I fully concur in the judgment of the Court as announced by the Chancellor, that the act of the General Assembly of this State of the eleventh of August, 1864, entitled “An Act to raise revenue for the State,” in so far as it applies to the transportation of passengers through, from, into, or out of this State, is unconstitutional and void. Rulings which have been made sustaining State Laws in regard to police, the preservation of health, bridges and other matters of a local nature, are evidently exceptional in their character, and cannot be ' considered as of controlling authority in a ease like this. The Act of Assembly in question is clearly and expressly a tax law, a law to raise revenue for the use of the State, a law imposing “ a tax at and after the rate of ten cents “ for every passenger” transported within the State, and requiring the same to be paid into the hands of the State Treasurer for the use of the State. It is specifically a tax to be applied to general State purposes.
[200]*200But it has been contended that this tax is in terms, imposed on the company in respect to its business as a common carrier, and not on passengers transported by it; and that the intention of the Legislature to impose the burden upon the business of the company is made clearly apparent by the language of the act itself, which expressly declares that every person, corporation, or company engaged in the business of transporting or carrying passengers by steam power, shall pay to the State Treasurer, for the use of the State, a tax at and after the rate of ten cents for every passenger so transported, blot that the passenger, but that the company shall pay the tax, the aggregate amount of which shall be measured and determined by the number of passengers transported. Such, in brief, is the argument of the counsel for the plaintiff on the question of construction, and their reading and interpretation of the act.
blow, I beg to remark that on considering the act with the view of determining its true construction, we must look beyond its phraseology to the substance and real meaning underlying the mere letter of the act. If I were to confine myself to- the language merely of the first clause of the first section, disconnected from the proviso of that section, and also from the provisions of the fourth section, I might perhaps, if it were not for the ¡Nevada case, hold the tax to be a tax upon the business of the company, and not upon the passengers. But when I find, as I do, upon reading the proviso, that where on the same occasion the passenger travels over several connecting roads belonging to different companies, only one tax of ten cents is required to be paid for traveling over all the connecting roads, and that this tax is to be paid by the company upon whose road the journey began, thus entirely exempting from taxation all the other connecting roads in the State, over which the passenger may travel in the course of his journey; and that, in ascertaining the aggregate amount of the tax to be paid, “ all persons carried who “ are soldiers or sailors of the United States,” are to' be omitted [201]*201from the estimate of the number of passengers actually carried: and when, in addition to this, I consider that by the fourth section of the act, the company is expressly authorized to increase its charge for transportation, “ to the amount of tax,” beyond what the passenger would otherwise have been required to pay, thus making the passenger actually pay the tax before commencing his journey, I am forced to the conclusion that it cannot properly be held to be a tax on the business of the company.
To be properly a tax on business, as such, it would seem to me, that it should be laid or assessed, either on the entire business operations of the company, or on the results of its whole business, or on all its business of a particular class or description, without exception or exemption. ¡Now, there is no reference whatever contained in the act, to the general business of the company. On the contrary, it refers solely and exclusively to persons, to the transportation of passengers, not of passengers generally, but of passengers other than soldiers and sailors of the United States. Personality, therefore, thus limited to but part of a class, though a large one, and nothing else in respect to business, runs through the whole act. It is a tax at and after the rate of ten cents for every passenger transported, except that in estimating the number of passengers, soldiers and sailors of the United States carried over the road shall not be counted. All other persons transported are to be counted, and the tax to be levied has respect to them alone. Certainly the business of the company includes, as well the carriage of “ Soldiers and Sailors of the United States,” as of all other persons. The former are passengers transported for hire as well as the latter, and if it be a tax on the business of transportation, why should soldiers and sailors of the United States be omitted in estimating or counting the number of passengers carried over the road ? We are told, however, that the act provides for payment of the tax by the company. And so it does. But then, as the tax is required to be paid by that company alone on whose road the passenger begins his [202]*202journey, exempting from taxation all the other connecting roads in the State, over which he may travel in the course of his journey, and as by the fourth section of the act, the company is expressly authorized to increase its charge for transportation “ to the amount “ of the tax,” and thus to exact payment of the tax from the passenger before permitting him to begin his journey, it is manifest that the true meaning of the act, as well as its practical operation and effect, is to impose the tax on the passengers. But it is unnecessary to consider this branch of the subject any further. Even if I entertained serious doubts as to the true construction of the act, I should feel' myself bound by the judgment of the Supreme Court of the United States, in the case of Orandall v. The State of Nevada, 6 Wall. 35. That decision, as I understand it, disposes of this case. It decides that a State cannot directly or indirectly tax persons for passing through or out of the State, and that the act of the State of Nevada imposing a tax on railroad and stage companies for every passenger carried out of the State by them, was a tax on the passenger, and not a tax on the business of the companies.
After a careful examination of the provisions of the act of the State of Nevada, I confess myself unable to distinguish it upon principle, from the act of this State now under consideration. If there be any difference between them other than in phraseology, I think it is rather in favor of the Nevada Statute. It seems to me, however, that the decision of the constitutional question involved Hm the Nevada Case, was placed by the majority of the Court upon grounds somewhat new and peculiar, and as might have been expected, not altogether satisfactory to _the judicial mind of the country. And while I do not presume to say that the decision cannot be sustained on the- grounds upon which they have preferred to place it, yet I can not but think they might have based it upon ground much more stable and satisfactory, namely, upon the solid ground of the commercial clause of the Federal Constitution.
[203]*203Now, if the commercial clause be struck out from the body of the constitution, what particular section, provision, or clause of that instrument can he specified and invoked as a limitation upon, or as a negation of the power of the States to tax passengers for the privilege of passing through their respective territories ? I confess I know of none. And hence if no other provision of the constitution can be pointed out as affording protection against State interference or obstruction to the free intercourse of the citizens of our common country among the several States, it strikes me as being perfectly obvious, that the commercial clause must have greatly influenced the minds of the judges in their consideration of the Nevada Case, because the great principle of supreme sovereignty in regard to commerce or intercourse embodied in that clause, and as I think, to be found no where else, manifestly underlies all the reasoning upon which the majority of the Court have seen fit to place their judgment. And surely if this be so, it would, at least, have been safe and in accord with previous judicial interpretation,to have placed their decision squarely upon the commercial clause. If power to regulate commerce means power to regálate the intercourse of the citizen among the several States, the right of every citizen to free transit, would appear to come within both the letter and spirit of this grant of power, and to be fully protected against State interference. And if this be so, I beg respectfully to ask where was the necessity for resorting to the uncertain and debatable ground of the implied powers of the Federal Constitution ? Here is an express grant of power covering the whole subject, why then, look beyond this for something else that is shadowy and indefinite ? And what is more vague and debatable than the doctrine of the implied powers of the Constitution ? Moreover, does not the fact of the grant of an express power to regulate commerce, that is to say, to regulate intercourse among the several States, which is complete and plenary in itself, seem to amount to a negation of the existence of an implied power [204]*204in regard to the same subject matter ? I am aware that the majority of the Court may have found themselves embarrassed by conflicting dicta, and want of harmony of views among the Judges in several former cases, for it is certainly true, as they say in the recent case of Hinson v. Lott,— Wall—, that “ the question of the nature of the “ power to regulate commerce, and how far that power is “ exclusively vested in Congress, has always been a diffi- “ cult one, and has seldom been construed with unanimity.” Thus conceding, however, that it has sometimes been construed with unanimity. But although it is unfortunately too true, that since the year 1827 the Supreme Court has been generally more or less divided in opinion upon the question of the nature and extent of the power to regulate commerce, yet it has never been decided, even by a divided court, that the power was not exclusively vested in Congress. On the contrary, we have the authority of the case of Gibbons v. Ogden, 9 Wheat. 1, decided in the year 1824, in which it was unanimously settled upon the most solemn deliberation, Chief Justice Marshall delivering the opinion of the Court, and Mr. Justice Johnson concurring in a separate opinion, that the power to regulate commerce is vested exclusively in the Government of the United States. The same doctrine substantially was held in 1827, in the case of Brown v. The State of Maryland, 12 Wheat. 419. And notwithstanding the differing opinions of the Judges which, as I have said, most unfortunately afterward divided the Court upon this question, the doctrine settled in Gibbons v. Ogden as to the exclusive nature of the power, has never been overruled by any subsequent decision. The case of the City of New York v. Miln, 11 Peters, 136, can not he considered as having shaken the authority of Gibbons v. Ogden. Indeed, the opinion delivered by Mr. Justice Barbour, and reported in (11 Peters, 102,) as the opinion of the Court—a divided Court at best—never had at any time the sanction of a majority of the Court, except in a single particular which did not in any wise impair the authority of Gibbons v. Ogden. All [205]*205that was said in that opinion in regard to the power of Congress to regulate commerce, and especially the declaration that “persons were not the subject of commerce,” was said without the concurrence of a majority of the Court. It was not the intention of the Court in that case to modify in any respect whatever the doctrine settled and expressed in the opinions delivered in the cases of Gibbons v. Ogden and Brown v. Maryland: see Mr. Justice Wayne’s opinion in the Passenger Cases, 7 How. 429, 430, 431, 432, 433.
Under the circumstances it seems to me that it would have been quite as safe to have placed the decision in the Nevada Case upon the solid ground of the commercial clause, supported by the maturely considered and unanimous judgment of Chief Justice Marshall and his learned and able associates in the case of Gibbons v. Ogden, as to have placed it, as they did, upon the uncertain and debatable ground of the implied powers of the Federal Constitution, supported only by the mere dictum of the venerable Chief Justice Taney contained in the concluding paragraph of his dissenting opinion in the Passenger Cases. You may say indeed that this dictum contains a great principle in regard to the citizens of the States as members of the Union—and I concede it—yet still you find this same principle clearly and firmly embodied in the commercial clause, as the shield and protection of the citizen, and as •a denial of the right of the States to obstruct or interfere with free transit.