PRINCIPLES OF TAXATION. 475 



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 upon 

 imports to escape the prohibition in the Constitution. The de- 

 ductions from a contrary rule would be manifestly as follows : 

 " No goods would be imported if none could be sold. The same 

 power that imposes a light duty can impose one that amounts to 

 prohibition. A dutj^ on imports is a tax on the article, which is 

 paid by the consumer. The great importing States would thus 

 levy a tax on the nonimporting States," as was done under articles 

 of the Confederation prior to the adoption of the Federal Con- 

 stitution. " This would necessarily produce countervailing meas- 

 ures.'^ 



In the case of Brown vs. Maryland, where the latter State, 

 for revenue purposes, required a merchant to take a license and 

 pay fifty dollars before he should be allowed to sell a package 

 of imported goods, the court (by Chief-Justice Marshall) held that 

 this tax, though indirect inform (i. e., a license on the person of 

 the importer), was in fact equivalent to a duty on imports, and 

 therefore illegal ; and that the right to import carried with it the 

 right to sell.* 



This decision has been carefully recognized by the authorities 

 of the several States in dealing with imported liquors under local 

 license acts. "' Under its police powers there is no constitutional 

 restraint on a State prohibiting the retail and internal traffic in 

 ardent spirits. But a State is at the same time bound to receive 

 and permit the sale by the importer of any article of merchandise 

 which Congress authorizes to be imported, but it is not bound to 

 abstain from the passage of laws which it deems proper to guard 

 the health or morals of its citizens, although the effect of such 

 laws may be to discourage importation, and diminish the profits 

 of the importer and the revenue of the General Government.'' 

 Burroughs, On Taxation. 



Limitations of the Taxing Power of the Federal Gov- 

 ernment. If the States can not tax the agencies or instrumen- 



* As an extension of the history of this case the following futile criticism of a former 

 chairman of the Board of Assessors of the City of Boston (report for 1871) is pertinent : 

 " There is certainly a broad distinction between the prohibition of the right to sell an im- 

 ported article and the right to tax the same as property. The decision of the United States 

 Court was to the effect that the State could not enact a law that would prevent the sale of 

 such property, and did not touch the question of the right to tax. In a recent decision of 

 the Supreme Judicial Court of Massachusetts (Dunbar vs. Boston, 101 Mass., SlY), where 

 the question was raised that the Commonwealth could not tax a stock of liquors, the sale of 

 which, by her laws, she had declared illegal, the court sustained the tax, upon the ground 

 that the case did not show that the goods could not be legally sold. As the law stood at 

 the time the decision was given, but one class of the plaintiff's stock of intoxicating Hquors 

 could legally be sold ; and that was his importations in the original packages.'''' 



