Lin Sing v. Washburn

20 Cal. 534, 1862 Cal. LEXIS 76

Opinions

Cope, J. delivered the opinion of the Court—Norton, J. concurring.

The plaintiff is a Chinese, and the defendant is the Tax Collector for the city and county of San Francisco. The suit is brought to recover the amount of a tax paid by the former to the latter, and the question presented is the constitutionality of an act of the Legislature of this State, approved April 26th, 1862. The act is entitled “ An Act to protect free white labor against competition with Chinese coolie labor, and discourage the immigration of the Chinese into the State of California.” It levies a monthly tax of two dollars and fifty cents “ on each person, male and female, of the Mongolian race, of the age of eighteen years and upwards, residing in this State, except,” etc.; and provides for its collection by a seizure and sale of property.

The case has been ably argued on both sides, and the magnitude of the question, involving, as it does, considerations of the highest importance, has devolved upon us an unusual amount of labor in its investigation. ' It is a question of great public interest, not only to the people of this State, but of the whole Union f and the feeling existing in regard to its determination is the natural result of a controversy so vast in its proportions, and so general in its consequences. It is contended that the act is in violation of the Federal Constitution, and embraced in the question is the subject of State and National sovereignly in matters of commerce and internal police. The provisions of the Constitution relied on are those giving to Congress the power to lay duties on imports, and to regulate commerce with foreign nations, and giving to the President, with the advice and consent of the Senate, the power to make treaties.

It is claimed, that the authority conferred by these provisions is not only paramount, but exclusive, and that any act of State legislation affecting directly or indirectly the exercise of this authority, or amounting to the exercise of similar authority by the State, is unconstitutional and void; that these objections are applicable to the act in question, and that its passage by the Legislature was not a legitimate exercise of the power of taxation, but the assertion of a right to control foreign intercourse; that this right is vested in the General Government as a part of the power to regulate commerce, and that in passing the act, the Legislature usurped authority belonging exclusively to the Government; in short, that the act is a regulation of commerce, and being so is an interference with the regulating power of the Government, and in derogation of its constitutional authority. It is claimed on the other hand, that the police powers of the State, and particularly the taxing power, are sufficient to maintain the authority of the Legislature, and that as to such powers the State is supreme; that as the act is limited in its terms to persons residing in the State, and contains no provision compelling then departure or preventing others from coming, it is not in any sense a regulation of commerce; that all residents of the State are subject to taxation, and that in the exercise of Ihe taxing power, the extent to which taxes shall be imposed is a matter of which the State is the sole judge; that the State has plenary power in matters of internal police, and that even if the intention had been to banish obnoxious persons from our shores, the act could not have been regarded as an infringement of the Constitution. This, we believe, is a fair though concise statement of the positions taken by counsel, and we shall be as brief in our consideration of them as the nature and importance of the subject will allow.

The act applies exclusively to Chinese, and there is no doubt that the object of the Legislature in passing it is correctly expressed in the title. This is not denied; nor could it be, in view of the act itself and the previous legislation upon the subject; and if we admit the power asserted in its passage, the right of unconditional exclusion would seem to follow as a necessary consequence. It is con ceded that the Constitution has vested in the Government the power to regulate commerce in all its branches, and it is settled that this power extends to every species of commercial intercourse, and may be exercised upon persons as well as property. This was decided by the Supreme Court of the United States in two cases, generally known as the Passenger Cases, (7 How. 283) overruling in that respect the case of the City of New York v. Miln (11 Pet. 102). The cases arose under laws passed by the Legislatures of Hew York and Massachusetts, and were argued by counsel distinguished for their ability, and decided upon great consideration by-the Court. Both of these laws imposed a tax on alien passengers, and the question was whether they were in derogation of the power vested in the Government of the United States to regulate commerce. It was decided that they were, five of the Judges concurring in the decision, and four dissenting; those concurring, however, differing to some extent in the reasoning upon which their conclusion was arrived at. The points of difference embrace one of the positions taken in the present case, and although we do not consider a decision upon it necessary in determining the ease, it is proper to notice it. Mr. Justice McLean was of opinion that the power to regulate commerce was a power prohibited to the States, and vested exclusively in Congress, and cited the ease of Gibbons v. Ogden (9 Wheat. 196) as having decided the point. Mr. Justice Wayne was of the same opinion, but said: “A majority of us do not think it necessary in these cases to reaffirm, with our brother McLean, what this Court has long since decided, that the constitutional power to regulate commerce with foreign nations, and among the States, and with the Indian tribes, is exclusively vested in Congress, and that no part of it can be exercised by a State.” Mr. Justice Catron declined to express any opinion upon the subject, remarking that “ The question whether the power to regulate commerce and navigation is exclusive in the Government of the United States, or whether a State may regulate within its own waters and ports in particular cases, does not arise in this cause.” Mr. Justice Grier concurred in the opinion of Mr. Justice Catron; and Mr. Justice McKinley said: “ I have examined the opinions of Mr. Justice McLean and Mr. Justice Catron, and concur in the whole reasoning upon the main question.” Mr. Justice Wayne, adopting the views of Mr. Justice Catron, said: “ His leading positions are, that the acts of Massachusetts and Hew York are tax or revenue acts upon the commerce of the United States, as that commerce has been regulated by the legislation of Congress and by treaty stipulations; that the power to regulate commerce having been acted upon by Congress, indicates how far the power is to be exercised for the United States as a nation, with which there can be no interference by any State legislation. * * * Those of us who are united with Mr. Justice Catron in giving the judgments in these cases, concur with him in these opinions. Mr. Justice McKinley and Mr. Justice Grier have just said so, my own concurrence has been already expressed, and the second division of Mr. Justice McLean’s opinion contains conclusions identical with those of Mr. Justice Catron concerning the unconstitutionality of the laws of Massachusetts and Hew York, on account of the conflict between them and the legislation of Congress.” These cases are frequently cited in support of the doctrine that the grant of power in the Constitution, even in its dormant state, vests an exclusive authority in Congress, and operates as a prohibition upon the States. It is obvious, however, that this point was not determined; and all that was decided is, that when the power has been exercised, and regulations established, the States cannot interfere. To this extent there was a concurrence of opinion, and to this extent the decision is an authoritative exposition of the meaning of the Constitution; and so far as it goes, we have nothing to do but to follow it. Whether it has ever been decided that the grant of power amounts in itself to a prohibition, has been the subject of much discussion; and notwithstanding the emphatic declaration of Mr. Justice Wayne, must be regarded as a debatable proposition. Many of the Judges who participated in the cases relied on as deciding it are equally emphatic in asserting the contrary, and it must be confessed that the cases themselves are not sufficiently clear to remove the difficulty. In Wilson v. The Blackbird Marsh Company, (2 Pet. 245) a different doctrine seems to have prevailed, recognizing the right of a State to exercise commercial power, where no conflict is produced with an act of Congress. We have already stated, however, that we do not consider an opinion upon the subject necessary in this case; and we have only alluded to it in response to counsel, who have assumed that the point has been decided.

The laws in question in the two cases to which we have referred, required the master, owner, consignee or agent of the vessel to pay the tax, the payment to be made as soon as the vessel arrived in port. The Court held that in any view that could be taken of them, as imposing a tax either upon the vessel, the owner, or the passengers, they were equally an interference with commerce, and in violation of the authority of the Government. The assumption that a State might so use its taxing power as to obstruct the exercise of a power vested in the Government was pointedly condemned; and the doctrine that within the range of its constitutional authority the Government is supreme distinctly enunciated. This, however, was merely a repetition of what had been decided over and over again, and must always be regarded as a vital and fundamental principle of the Constitution; for any other doctrine would enable the States, by hostile legislation, to paralyze the energies of the Government and defeat the purposes of its formation. We shall speak of this subject more fully hereafter, when we come to consider the effect of the act complained of in this case, and its bearing as a measure of State legislation upon the power of the Government under the Constitution. At present, we shall confine ourselves to an examination of the cases referred to, so far as may be necessary in order to arrive at a clear understanding of the points decided, and the principles of the decision. We shall only state such points as we deem to be material in the consideration of this case, referring to the opinion of Mr. Justice Wayne for a full and accurate summary. It was decided that the laws in question, being in their nature regulations of commerce, and in contravention of the power vested in and exercised by the Government, were unconstitutional and void; that the States cannot tax the commerce of the United States for any purpose, and that the commerce of the United States includes an intercourse of persons, as well as the importation of merchandise; that State laws imposing a tax on foreigners or immigrants, such tax to be paid after the arrival .of the vessel within the limits of the State, but before the passengers are landed, are laws which the States cannot constitutionally pass ; that the regulating power of Congress includes navigation upon the high seas, and in the bays, harbors, lakes and navigable waters within the United States, and that any tax by a State in any way affecting the right of navigar tion, or subjecting the exercise of that right to a condition, is contrary to the Constitution and void. It was conceded that the States, in the exercise of then1 police powers, could pass quarantine and health laws, and laws excluding paupers, vagabonds and criminals, and that the provisions of the Constitution are not to be construed as prohibiting the enacting of laws for these purposes. Such laws are necessary in providing for the general welfare; and although commerce may be incidentally affected by them, they were not regarded as inimical to the exercise of the commercial power. As to how far a State may go in this respect no opinion was expressed, and it would have been difficult, if not impossible, to lay down any precise or definite rule upon the subject. “ Ho one,” said Mr. Justice McLean, “ has yet drawn the line clearly, because, perhaps, no one can draw it, between the commercial power of the Union and the municipal power of a State. Humerous cases have arisen, involving these powers, which have been decided, but a rule has necessarily been observed as applicable to the circumstances of each case.” This probably is all that could have been said upon the subject; and even this was not necessary as applied to the laws under consideration, as they were not passed for the preservation of health or the protection of the community. They were purely tax or revenue measures, and as their effect was to burden commerce by imposing upon it restraints and liabilities, they were held to be unconstitutional. The Government had acted upon the subject, and prescribed the rule by which it should be regulated and controlled, and this rule was the supreme law, and plac.ed it beyond the reach of State interference. The right of a State to tax persons residing within its limits was not disputed; but it was held that the right of taxation did not extend to persons connected with commerce, who, although within its limits, had not landed and become residents. The opinion of Mr. Justice Catron, which appears to have received the sanction of the other Judges, contains a full and able review of the commercial system of the Government, and shows that its policy has always been to cultivate intercourse with foreign nations.

We have, perhaps, examined these cases at greater length and with more particularity than was necessary, but they constitute the starting point in the argument, and it was desirable to understand clearly the effect of the decision. The difference between them and the case at bar is, that in the former the person was met at the time of his arrival and taxed for the privilege of landing, and in the latter, he is permitted to land and the tax levied as a condition of his residence. The person is the same—the only difference is in the circumstances under which the tax is imposed; and if this difference does not relieve the tax of its objectionable feature as an interference with commerce, we conceive that the same rule must be applied. The act is limited in its terms to Chinese residing in the State ; but immigration from China will necessarily be affected by it, and it will hardly be pretended that this is a matter in which the commerce of the country is not interested. Its tendency is to diminish intercourse, without which commerce cannot exist; and it is obvious that to the extent of its influence in this respect the operations of commerce must suffer a corresponding diminution. In Gibbons v. Ogden, it was contended that commerce included nothing but traffic ; but the Court said: “ Commerce, undoubtedly, is traffic—but it is something more; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.” Commerce cannot be carried on without the agency of persons, and a tax, the effect of which is to dimmish personal intercourse is necessarily a tax upon commerce; and the power exercised in imposing it may be so used as not only to diminish but to destroy. If we acknowledge the power, no limitation can be affixed to its" exercise, for the power to tax is a sovereign power, and wherever it exists may be exercised at the will and discretion of the sovereign. We admit that the States are sovereign, and as the result of this admission we concede to them all the power incident to the exercise of sovereign authority, except as this power has been granted by the Constitution to the National Government. As to the power thus granted, the Government is supreme, and as a necessary consequence, the States are prohibited from interfering with its exercise; and this prohibition includes every act by which such interference may be attempted. o In granting the power, the States necessarily surrendered the right to control it; and the idea that a power not granted may be used as a restraint upon the power granted is repugnant to the Constitution, and the whole theory of the Government. This doctrine has been repeatedly laid down as applicable to the taxing power, and no view can possibly be taken of it which has not already undergone the fullest and most elaborate discussion. McCullough v. The State of Maryland, (4 Wheat. 316) and Weston v. The City Council of Charleston, (2 Pet. 449) are cases in point, in the former of which the Court said: “ The States have no power by taxation, or otherwise, to retard, impede, burden, or in any manner control the operation of the constitutional laws enacted by Congress, to carry into execution the powers vested in the General Government.” In the case of Brown v. The State of Maryland, (12 Wheat. 419) the same principle was applied, and we regard the decision as bearing with conclusive force upon the case at bar. The Legislature of Maryland passed an act requiring all importers of foreign goods by bale or package, and other persons selling the same by wholesale, bale or package, to take out a license, for which they were to pay fifty dollars. The question before the Court was the constitutionality of this act; and in an able and elaborate opinion by Chief Justice Marshall, the Court held that the act was an interference with commerce, and was unconstitutional and void. It was held that the effect of the act was to tax the goods, and that this amounted to laying a duty upon imports, which a State was prohibited from doing ; and that it interfered with the regulations of Congress by imposing a burden upon the right to sell. It was not pretended that the act could stand if it came -within the prohibition of the Constitution, or violated any act of rightful legislation by Congress; but it was urged that such a construction would abridge the acknowledged power of a State to tax its own citizens, or their property within its territory. In respect to the prohibition, the Court answered: “ The constitutional prohibition on the States to lay a duty on imports, a prohibition which a vast majority of them must feel an interest in preserving, may certainly come in conflict with their acknowledged power to tax persons and property within their territory. The power and the restriction on it, though quite distinguishable when they do not approach each other, may yet, like the intervening colors between white and black, approach so nearly as to perplex the understanding, as colors perplex the vision in marking the distinction between them. Yet the distinction exists, and must be marked as the cases arise. Till they do arise, it might be premature to state any rule as being universal in its application. It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State ; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the Constitution.” On the other point, the Court said: “ We admit this power to be sacred; but cannot admit that it may be so used as to obstruct the free course of a power given to Congress. We cannot admit that it may be used so as to obstruct or defeat the power to regulate commerce. It has been observed that the powers remaining with the States may be so exercised as to come in conflict with those vested in Congress. When this happens, that which is not supreme must yield to that which is supreme. This great and universal truth is inseparable from the nature of things, and the Constitution has applied it to the often interfering powers of the General and State Governments, as a vital principle of perpetual operation. It results, necessarily, from this principle that the taxing power of the States must have some limits. It cannot reach and restrain the action of the Rational Government within its proper sphere.”

We propose, however, to consider the case in another point of view, as we think the principle underlying and controlling the decision is conclusive of the present controversy. It will be seen that the question was not whether the goods could be stopped in transitu, and a tax imposed before they reached the hands of the importer, but whether, having reached his hands, they were subject to a tax in the form of a license to sell. Whether, in other words, it was competent for the State to impose a tax upon the right of sale, and by acting upon the importer reach the import, and subject it to a charge for revenue purposes. It was contended for the State, that when the goods were landed, the authority of the Government ceased; that the goods passed from the control of the Government to that of the State, and were subject to any regulation the State chose to adopt. To this it was answered," that the right to import included the right to sell, and that when the importer purchased that right by the payment of a duty to the Government, he purchased also the privilege of a market, and that taxing the market was in effect taxing the import. It was contended, in reply, that the term “ imports,” in the Constitution, only applied to the act of importation; that the only right acquired from the Government was the right to introduce, and that the articles having entered the country, a tax upon them was not an interference with this right. These positions were taken up and fully considered by the Court, and the opinion delivered is in that peculiar style of terse and convincing logic so eminently characteristic of the Chief Justice who wrote it. It was held that the importer purchased from the Government the right to sell as well as to introduce and bring in, and that the term “ imports ” referred to the article imported, and not to the act of importation. The position that the authority of the Government terminated with the entry was declared to be unsound, and it was held that this authority continued so long as the article retained its distinctive character as an import. “ The counsel for the plaintiff in error,” said the Court, “ contend that the importer purchases, by the payment of the duty to the United States, a right to dispose of his merchandise, as well as bring it into the country; and certainly the argument is supported by strong reason, as well as the practice of nations, including our own. The object of importation is sale; it constitutes the motive for paying the duties; and if the United States possess the right of conferring the power to sell, as the consideration for which the duty is paid, every principle of fair dealing requires that they should be understood to confer it. The whole course of legislation on the subject shows that in the opinion of the Legislature the right to sell is connected with the payment of duties.” The power of Congress to regulate commerce with foreign nations was declared to be complete' in itself, and to acknowledge no limitations other than those prescribed by the Constitution. “ The power,” said the Court, “is coextensive with the subject on which it acts, and cannot be stopped at the external boundary of a State, but must enter its interior. If this power reaches the interior of a State and may be there exercised, it must be capable of authorizing the sale of those articles which it introduces. Commerce is intercourse; one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize traffic, when given in the most comprehensive terms, with the intent that its efficacy should be complete, should cease at the point where its continuance is indispensable to its value.” This power is not to be understood, of course, as extending only to the articles upon which duties are paid, but to every article brought into the country under the authority of the Government. If an article'-is admitted free, it is because the interest of commerce, or some domestic purpose, is supposed to require it, and the right to introduce and sell is given as an equivalent for the act of importation. The power of the Government is the same in both cases, and the principle established in the case before us is, that when the article has been brought in through the agency of this power, the right to sell is a necessary incident. It was admitted that when the article had lost its character as an import, by being incorporated and mixed up with the mass of property in the country, it became subject, like other property, to the taxing power of the State. This admission, however, does not acknowledge the power of a State to single out an imported article, and subject it to a tax not imposed upon other property of the same description; and such a tax would undoubtedly come within the principle of the decision. The whole reasoning of the decision shows that a discriminating tax, the effect of which would be to give preferences and close the markets against imported articles, would be invalid; and it is impossible that any circumstance could give validity to it. The Court did not intend to distinguish between wholesale and retail dealers, nor between the importer and other persons purchasing the articles for the purposes of traffic, but to lay down a rule covering the whole ground of State interference. The free use of the powers vested in the Government was declared to he essential to its existence, and the intention was to lay down a rule broad enough to include every act of a State obstructing or impeding the constitutional measures of the Government. A State may tax the property of its citizens, but it cannot tax imports; and a tax discriminating against an imported article would be a tax upon the article as an import, and not as a part of the general mass of property. If a State may constitutionally impose such a tax, the States together may constitutionally break up the entire commercial system of the Government; for, admit the power, and there is nothing to prevent the imposition of a tax amounting to a prohibition. It is clear that the power docs not exist, and in whatever form its exercise may be attempted, it will be the duty of the Courts to interfere, and, by arresting the encroachment, preserve the authority of the Government.

It is immaterial for the purposes of this case whether we call persons immigrating to this country from abroad imports, or use some other term more aptly describing then’ relations to commerce. The transportation of passengers is a large and rapidly increasing branch of our carrying trade, and at the different ports of the country hundreds of vessels, employed almost exclusively in this branch of commerce, arrive and depart monthly. It cannot be denied that the Government has the same power over this as over other branches of commerce, and a large portion of the legislation upon the subject applies entirely to this branch. It has been an object of special interest to the Government, from the time that our commerce was in its infancy, and its growth has been watched with great solicitude as promising a speedy development of the resources of the country. It has received the encouragement of Congress in every form in which assistance could be advantageously rendered, and the benefits resulting from it are felt and acknowledged by the whole nation. It has always been the policy of the Government to encourage immigration, and the most liberal system of laws has been adopted to induce foreigners to come to the country for the purpose of settlement and traffic. The fruits of this system are to be seen in the rapid increase of our population, the settlement and improvement of our fertile and extensive domain, and the millions of wealth added year after year to every branch of industry and trade. The results of the system demonstrate its wisdom; but whether wise or unwise, it is a system which the Government had the right to adopt, and with which no State can constitutionally interfere. The whole subject of trade and intercourse has been confided to the national will, and if a State may so use its reserved powers as to defeat the operations of this will, the Constitution, instead of being a practical instrument, is a shadbw and a myth. If any effect is to be given to it as a grant of power, the line which marks the limit of the grant is the line beyond which State action cannot be extended; it is the dividing line between the powers reserved and the powers granted. The power to regulate commerce is among the powers expressly enumerated, and having passed from the States to the Government, no State can exercise any part of it, except, perhaps, as the Government may assent to its exercise in particular cases. Commerce is a unit, its several parts so united and bound together as to be inseparable; and as intercourse is a component part of commerce, the power to regulate commerce includes the power to regulate intercourse. The power comes from the grant, and is coextensive with the subject to which it relates; and whether exercised to encourage immigration, or for any other purpose within the range of commercial intercourse, the States are prohibited from interfering. It may be thought inaccurate to say that a law passed to induce immigration for the purpose of settlement is a regulation of commerce ; but it is clear that the Government, in virtue of its commercial power, may pass such a law. Immigration, either temporary or permanent, is an essential ingredient of intercourse and traffic, and the power to regulate commerce implies the power to regulate both as to persons and to goods. This is the leading idea of the Passenger Cases, and the necessary inference from these cases, taken in connection with Brown v. The State of Maryland, is that when the persons have once entered, the States have no power to tax them out. “ Except to guard its citizens against diseases and paupers,” said Mr. Justice McLean, “ the municipal power of a State cannot prohibit the introduction of foreigners brought to this country under the authority of Congress.” Mr. Justice Wayne, referring to the argument of counsel, said: “ It was assumed that a State has unlimited discretion, in virtue of its unsurrendored police power, to determine what persons shall reside in it. Then it was said to follow, that the State can remove all persons who are thought dangerous to its welfare ; and to this right to remove it was said the right to determine who shall enter the State is an inseparable incident. That erroneous proposition of the discretion of a State in this matter, has led to all the more mistaken inferences made from it. The error arose from its having been overlooked that a part of the supreme police power of a nation is identical, as I have shown it to be, with its sovereignty over commerce. Or, more properly speaking, the regulation of commerce is one of those particular rights collectively placed in the hands of the sovereign for the good of the State. Until it is shown that the police power in one of its particulars is not what it has just been said to be, the discretion of a State of this Union to determine what persons may come to and reside in it, and what persons may be removed from it, remains unproved. It cannot be proved,” etc. Mr. Justice Catron said that in the exercise of its authority over commerce the Government is supreme, and may admit or refuse foreign intercourse, either partially or entirely. The opinion delivered by him contains so full and thorough an examination of the legislation of Congress, and the action of the Government upon the subject of commerce, we deem it unnecessary to go over that ground. Most of the regulations upon the subject are general in them nature, referring to no particular country, but inviting intercourse with all nations, and excluding none.

It must be admitted that the act before us is a measure of special and extreme hostility to the Chinese, and that the power asserted in its passage is the right of the State to prescribe the terms upon which they shall be permitted to reside in it. This right, if carried to the extent to which it may be carried if the power exists, may be so used as to cut off all intercourse between them and the people of the State, and obstruct and block up the channels of commerce, laying an embargo upon trade, and defeating the commercial policy of the nation. The act is sought to be maintained as a police regulation; but this branch of the police power has been surrendered to the Government as a part of the power to regulate commerce, and its exercise by a State is incompatible with the authority of the Government. We may dismiss from the case the question of the power of the States to exclude obnoxious persons, such as paupers and fugitives from justice, for it nowhere appears that the Chinese as a class are of that description; nor does the act pretend to deal with them as such. It imposes upon them a tax, but contains no provision denying to them a residence in the State; and the question is not whether they can be excluded as burdensome or dangerous persons, but whether they can be taxed for the privilege of residing here, without reference to their condition or character. That they may be taxed as other residents is not disputed, but that they may be set apart as special subjects of taxation, and be compelled to contribute to the revenue of the State in them character of foreigners, is a proposition which cannot be maintained. If this may be done, there is no restriction upon the power that does it, and a tax may be imposed which no human industry can pay, precluding all intercourse, and making it as impossible as if it were positively prohibited. The question is one of power, and if we admit the power we must admit it in its whole extent, as a power complete in itself, to be exercised at the discretion of the Legislature, and subject to no limitation or restraint. If it exists, it may be exercised upon all foreigners residing in the State, and may be so exercised as to bar the door of foreign commerce as effectually as the Government could do it by issuing its mandate and closing the ports. The fact that a power may be abused is no evidence that it does not exist; but where an inferior jurisdie tion asserts a power in conflict with that of a superior jurisdiction, the inference that the power asserted does not exisit is inevitable. And to determine whether there is a conflict or not, the power must be considered with reference to its consequences, for its effect when carried out is the only criterion by which a judgment can be formed.

It is said that the power of taxation in a State is a power incident to its sovereignty, and that the free exercise of this power upon persons and property within its limits is essential to its existence. We admit the importance of the power, and concede that no unnecessary restrictions should be placed upon it; but what has been said shows that like other State powers it must he exercised in subordination, to the powers vested in the Government. When a State undertakes to tax commerce, the question is not one of territorial jurisdiction, and there is no more reason in saying that a State may thwart the measure of the Government by a tax, than to say that it may do so through the agency of some other power. The authority of the Government is not to be measured by State lines, but by the provisions of the Constitution, and the limitations upon State power are to be measured by the same instrument, and not by geographical surveys and boundaries. This is the doctrine so forcibly laid down in Brown v. The State of Maryland, and the principle there established in relation to property is equally applicable to the case of persons. The latter are brought in by the same power that admits the former, and as subjects of State taxation stand precisely upon the same footing, and are entitled in an equal degree to the protection of the power under which they enter. In protecting them it protects itself, and to abandom them to an unlimited exercise of the taxing power of the States, would be to abandon itself to certain destruction.

We have already stated that most of our laws regulating commerce are general in their nature, and there is no doubt that they apply with as much force to our intercourse with China as to that with other nations. Such must have been the opinion of this Court in the case of the People v. Downer, (7 Cal. 169) which was decided upon the authority of the Passenger Cases; and the action of the Government seems to have been in accordance with this view. Revenue from that source has been regularly collected at the different ports; and it has been the uniform practice of the Government to admit imports from China and imports from other countries upon the same terms. In February last, Congress passed an act in relation to the “ Coolie trade,” prohibiting our vessels from transporting persons leaving the country under constraint, but expressly authorizing voluntary immigration. In addition to this, there is a treaty of “ peace, amity and commerce,” between the two nations, restricted on the part of China, so far as commerce is concerned, to certain ports and places, but open and unrestricted on our part.

We have examined the cases cited by the Attorney General, and see nothing in any of them to lead us to a conclusion different from that at which we have arrived. The doctrine laid down in The City of New York v. Miln, that persons were not the sxibjects of commerce, was expressly overruled in the Passenger Cases, and the authority of these cases has never been questioned. The License Cases (5 How. 504) were decided upon the ground that the laws in question were police regulations, and related to a subject peculiarly xvithin the authority of the States to regulate and control. The decision has never been supposed to be in conflict xvith Brown v. The State of Maryland; and since it was rendered, the latter case has been affirmed in Almy v. The State of California. (24 How. 169.)

It follows that the act in question is unconstitutional, and the judgment of the Court below is reversed, and the cause remanded for further proceedings in conformity xvith this opinion.

Norton, J.

The Supreme Court of the United States decided, in what are called the Passenger Cases, that a State had no power to impose a tax upon a foreigner for the privilege or right of coming into the State. The decision was made by the concurrence of a bare majority, that is, of five out of the nine Judges. The majority held that such a tax was an infringement upon the power of Congress to regulate commerce, which was held to include intercourse, and to involve the right of determining under xx'hat conditions foreigners should be alloxved to come to the United States. The minority held that the imposing of such a tax was but the exercise of the undoubted right of taxation belonging to the several States, and was not an infringement upon any poxyer granted by the Constitution to Congress. It is obvious that it was a nice and difficult question that coxdd divide so near equally the opinions of that tribunal, and striking reflections and arguments upon the opposite sides are presented in those differing opinions. But the question having been decided by that Court, to whom its decision belongs under the Constitution of the United States, the State Courts have no other duty than to follow that decision. The Supreme Court of the United States also decided in the case of Broom v. The State of Maryland, that a State law requiring a license to be obtained for the sale of imported goods in the original packages was void, because it had a tendency to discourage and prevent the importation of foreign goods, and was thus an infringement upon the constitutional right of Congress to regulate commerce. The Court held that the right under a law of Congress to import goods necessarily included the right to sell them in the country, and thus to have them become a part of the property of the country. That the right to import goods was a practical and substantial right, and not a useless form, as it would be if the goods, upon being landed, could not be put into market.

So long as these two decisions of the Supreme Court of the United States stand, any State law must be void, the purpose and effect of which is to prevent foreigners from coming to and residing in the State. The laws and regulations of Congress which allow foreigners to come to this country, necessarily allow them to remain here, in the same manner as those laws and regulations which allow foreign goods to be imported, allow them to be sold in and to become a portion of the property of the country. It would be an empty sound to say that the several States cannot pass any law to prevent foreigners from coming here, if they may pass laws which will compel such foreigners to depart as soon as they arrive.

One of the purposes of the law under consideration is stated in the title to be to 66 discourage the immigration of the Chinese into the State of California,” and there can be no doubt but that the tax imposed by the law on these persons for the mere right to reside here is an appropriate and effective means to accomplish the purpose announced in the title.

The case of the People v. Naglee (1 Cal. 232) referred to by counsel, decided that a State law requiring foreigners to take out a license for the privilege of working the gold mines was valid. It did not decide that they could be taxed merely for the privilege of residing in the State. The question not being the same, it is not necessary to examine the reasons upon rvhich it is based.

The right of the several States to exclude Africans, also alluded to by counsel, was held by the Supreme Court of the United States in the Passenger Cases to result from certain provisions of the Constitution, and not to be applicable to other persons.

I therefore concur with Mr. Justice Cope that the law in question is void, and that the judgment should be reversed and the cause remanded for further proceedings.