munity secured by the Constitution of the United States, or by the amendments thereto. Mugler v. Kansas, 123 U. S. 623, and cases cited. "These cases," in the language of the opinion in Mugler v. Kansas, 123 U. S. 659, "rest upon the acknowledged right of the States of the Union to control their purely internal affairs, and in so doing to protect the health, morals and safety of their people by regulatious that do not interfere with the execution of the powers of the general government, or violate rights secured by the Constitution of the United States. The power to establish such regulations, as was said in Gibbons v. Ogden, 9 Wheat. 1, 203, reaches every thing within the territory of a State not surrendered to the National government." But it was not thought in that case that the record presented any question of the validity of State laws, because repugnant to the power to regulate commerce among the States. It is upon the theory of such repugnancy that the case before us arises, and involves the distinction which exists between the commercial power and the police power, which "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." 12 Wheat. 441. And here the sagacious observations of Mr. Justice Catron, in the License Cases, 5 How. 599, may profitably be quoted, as they have often been before: "The law and the decision apply equally to foreign and to domestic spirits, as they must do on the principles assumed in support of the law. The assumption is that the police power was not touched by the Constitution, but left to the States as the Constitution found it. This is admitted, and whenever a thing, from character or condition, is of a description to be regulated by that power in the State, then the regulation may be made by the State, and Congress cannot interfere. But this must always depend on fact, subject to legal ascertainment, so that the injury may have redress, And the fact must find its support in this, whether the prohibited article belongs to, and is subject to be regulated as part of, foreign commerce or of commerce among the States. If from its nature it does not belong to commerce, or of its condition, from putrescence or other cause is such, when it is about to enter the State, that it no longer belongs to commerce, or in other words, is not a commercial article, then the State power may exclude its introduction; and, as an incident to this power, a State may use means to ascertain the fact. And here is the limit between the sovereign power of the State and the Federal power; that is to say, that which does not belong to commerce is within the jurisdiction of the police power of the State, and that which does belong to commerce is within the jurisdiction of the United States. And to this limit must all the general views come, as I suppose, that were suggested in the reasoning of this court in the cases of Gibbons v. Ogden, Brown v. Maryland and New York v. Miln [11 Pet. 102]. What then is the assumption of the State court? Undoubtedly, in effect, that the State had the power to declare what should be an article of lawful commerce in the particular State; and having declared that ardent spirits and wines were deleterious to morals and health, they ceased to be commercial commodities there, and that then the police power attached, and consequently the powers of Congress could not interfere. The exclusive State power is made to rest, not on the fact that the state or condition of the article, nor that it is property usually passing by sale from hand to hand, but on the declaration found in the State laws, and asserted as the State policy, that it shall be excluded from commerce. And by this means the sovereign jurisdiction in the State is attempted to be created in a case where it did not previously exist. If this be the true construction of the

constitutional provision, then the paramount power of
Congress to regulate commerce is subject to a very ma-
terial limitation; for it takes from Congress and leaves
with the States the power to determine the commodi-
ties or articles of property which are the subjects of
lawful commerce. Congress may regulate, but the
States determine what shall or shall not be regulated.
Upon this theory, the power to regulate commerce, in-
stead of being paramount over the subject, would be-
come subordinate to the State police power; for it is
obvious that the power to determine the articles which
may be the subjects of commerce, and thus to circum-
scribe its scope and operation, is in effect the control-
ling one. The police power would not only be a formid-
able rival, but in a struggle must necessarily triumph
over the commercial power, as the power to regulate
is dependent upon the power to fix and determine
upon the subjects to be regulated. The same process
of legislation and reasoning adopted by the State and
its courts could bring within the police power any ar-
ticle of consumption that a State might wish to ex-
clude, whether it belonged to that which was drank or
to food and clothing; and with nearly equal claims to
propriety, as malt liquors and the produce of fruits
other than grapes stand on no higher grounds than the
light wines of this and other countries, excluded in ef-
fect by the law as it now stands. And it would be only
another step to regulate real or supposed extravagance
in food and clothing. And in this connection it may
be proper to say that the three States whose laws are
now before us had in view an entire prohibition from
use of spirits and wines of every description, and that
their main scope and object is to enforce exclusive
temperance as a policy of State, under the belief that
such a policy will best subserve the interests of society,
and that to this end, more than to any other, has the
sovereign power of these States been exerted; for it
was admitted on the argument that no licenses are is-
sued, and that exclusion exists so far as the laws can
produce the result-at least in some of the States-and
that this was the policy of the law. For these reasons
I think the case cannot depend on the reserved power
in the State to regulate its own police." And the
learned judge reached the conclusion that the law of
New Hampshire, which particularly raised the ques-
tion, might be sustained as a regulation of commerce,
lawful because not repugnant to any actual exercise of
the commercial power by Congress. In respect of this,
the opposite view has since prevailed; but the argu-
ment retains its force in its bearing upon the purview
of the police power as not concurrent with, and neces-
sarily not superior to, the commercial power. The
laws of Iowa under consideration in Bowman v. Rail-
way Co., 125 U. S. 465, and Leisy v. Hardin, 135 id. 100,
were enacted in the exercise of the police power of the
State, and not at all as regulations of commerce with
foreign nations and among the States; but as they in-
hibited the receipt of an imported commodity, or its
disposition before it had ceased to become an article
of trade between one State and another, or another
country and this, they amounted in effect to a regula-
tion of such commerce. Hence it was held that inas-
much as inter-State commerce, consisting in the trans-
portation, purchase, sale and exchange of commodi-
ties, is National in its character, and must be governed
by a uniform system, so long as Congress did not pass
any law to regulate it specifically, or in such way as to
allow the laws of the State to operate upon it, Con-
gress thereby indicated its will that such commerce
should be free and untrammelled; and therefore that
the laws of Iowa referred to were inoperative in so far
as they amounted to regulations of foreign or inter-
State commerce in inhibiting the reception of such ar-
ticles within the State, or their sale upon arrival, in
the form in which they were imported there from a
foreign country or another State. It followed as a

corollary that, when Congress acted at all, the result of its action must be to operate as a restraint upon that perfect freedom which its silence insured. Congress has now spoken, aud declared that imported liquors or liquids shall, upon arrival in a State, fall within the category of domestic articles of a similar nature. Is the law open to constitutional objection?

By the first clause of section 10 of article 1 of the Constitution, certain powers are enumerated which the States are forbidden to exercise in any event; and by clauses 2 and 3, certain others, which may be exercised with the consent of Congress. As to those in the first class, Congress cannot relieve from the positive restriction imposed. As to those in the second, their exercise may be authorized; and they include the collection of the revenue from imposts and duties on imports and exports by State enactments, subject to the revision and control of Congress; and a tonnage duty to the exaction of which only the consent of Congress is required. Beyond this, Congress is not empowered to enable the State to go in this direction. Nor can Congress transfer legislative powers to a State, nor sanction a State law in violation of the Constitution; and if it can adopt a State law as its own, it must be one that it would be competent for it to enact itself, and not a law passed in the exercise of the police power. Cooley v. Board, 12 How. 299; Gunn v. Barry, 15 Wall. 610, 623; U. S. v. Dewitt, 9 id. 41. It does not admit of argument that Congress can neither delegate its own powers, nor enlarge those of a State. This being so, it is urged that the act of Congress cannot be sustained as a regulation of commerce, because the Constitution, in the matter of inter-State commerce, operates ex proprio vigore as a restraint upon the power of Congress to so regulate it as to bring any of its subjects within the grasp of the police power of the State. In other words, it is earnestly contended that the Constitution guarantees freedom of commerce among the States in all things, and that not only may intoxicating liquors be imported from one State into another without being subject to regulation under the laws of the latter, but that Congress is powerless to obviate that result. Thus the grant to the general government of a power designed to prevent embarrassing restrictions upon inter-State commerce by any State would be made to forbid any restraint whatever. We do not concur in this view. In surrendering their own power over external commerce, the States did not secure absolute freedom in such commerce, but only the protection from encroachment afforded by confiding its regulation exclusively to Congress. By the adoption of the Constitution, the ability of the several States to act upon the matter solely in accordance with their own will was extinguished, and the legislative will of the general government substituted. No affirmative guaranty was thereby given to any State of the right to demand, as between it and the others, what it could not have obtained before; while the object was undoubtedly sought to be attained of preventing commercial regulations partial in their character or contrary to the common interests. And the magnificent growth and prosperity of the country attest the success which has attended the accomplishment of that object. But this furnishes no support to the position that Congress could not, in the exercise of the discretion reposed in it, concluding that the common interests did not require entire freedom in the traffic in ardent spirits, enact the law in question. In so doing, Congress has not attempted to delegate the power to regulate commerce, or to exercise any power reserved to the States, or to grant a power not possessed by the States, or to adopt State laws. It has taken its own course, and made its own regulation, applying to these subjects of inter-State commerce one common rule, whose uniformity is not affected by variations in State laws in dealing with such property. The principle

upon which local option laws, so called, have been sustained, is that, while the Legislature cannot delegate its power to make a law, it can make a law which leaves it to municipalities or the people to determine some fact or state of things, upon which the action of the law may depend. But we do not rest the validity of the act of Congress on this analogy. The power over inter-State commerce is too vital to the integrity of the nation to be qualified by any refinement of reasoning. The power to regulate is solely in the genera: government, and it is an essential part of that regulation to prescribe the regular means for accomplishing the introduction and incorporation of articles into and with the mass of property in the country or State. 12 Wheat. 448. No reason is perceived why, if Congress chooses to provide that certain designated subjects of inter-State commerce shall be governed by a rule which divests them of that character at an earlier period of time thau would otherwise be the case, it is not within its competency to do so. The differences of opinion which have existed in this tribunal in many leading cases upon this subject have arisen, not from a denial of the power of Congress, when exercised, but upon the question whether the inaction of Congress was in itself equivalent to the affirmative interposition of a bar to the operation of an undisputed power possessed by the States. We recall no decision giving color to the idea that, when Congress acted, its action would be less potent than when it kept silent. The framers of the Constitution never intended that the legislative power of the nation should find itself incapable of disposing of a subject-matter specifically committed to its charge. The manner of that disposition brought into determination upon this record involves no ground for adjudging the act of Congress inoperative and void.

We inquire then whether fermented, distilled or other intoxicating liquors or liquids transported into the State of Kansas, and there offered for sale and sold, after the passage of the act, became subject to the operation and effect of the existing laws of that State in reference to such articles. It is said that this cannot be so, because by the decision in Leisy v. Hardin, similar State laws were held unconstitutional in so far fas they prohibited the sale of liquors by the importer in the condition in which they had been imported. In that case, certain beer imported into Iowa had been seized in the original packages or kegs, unbroken and unopened, in the hands of the importer, and the Supreme Court of Iowa held this seizure to have been'lawful under the statutes of the State. We reversed the judgment upon the ground that the legislation to the extent indicated-that is to say, as construed to apply to importations into the State from without, and to permit the seizure of the articles before they had by sale or other transmutation become a part of the common mass of property of the State-was repugnant to the third clause of section 8 of article 1 of the Constitution of the United States, in that it could not be given that operation without bringing it into collision with the implied exercise of a power exclusively confided to the general government. This was far from holding that the statutes in question were absolutely void, in whole or in part, and as if they had never been enacted. On the contrary, the decision did not annul the law, but limited its operation to property strictly within the jurisdiction of the State. In Railway Co. v. Minnesota, 134 U. S. 418, it was held that the act of the Legislature of the State of Minnesota of March 7, 1887, establishing a railroad and warehouse commission, as construed by the Supreme Court of that State, by which construction we were bound in considering the case, was in conflict with the Constitution of the United States in the particulars complained of by the railroad company; but nevertheless the case was remaded, with an instruction for further proceedings. And Mr. Justice Blatchford, speaking for this court,

said: "In view of the opinion delivered by that court, it may be impossible for any further proceedings to be taken other than to dismiss the proceeding for a mandamus, if the court should adhere to its opinion that, under the statute, it cannot investigate judicially the reasonableness of the rates fixed by the commis

sion."

In Tiernan v. Rinker, 102 U. S. 123, an act of the Legislature of the State of Texas levying a tax upon the occupation of selling liquors, malt and otherwise, but not of selling domestic wines or beer, was held inoperative so far as it discriminated against imported wines or beer; but as Tiernan was a seller of other liquors as well as domestic, the tax against him was upheld. In the case at bar, petitioner was arrested by the State authorities for selling imported liquor on the 9th of August, 1890, contrary to the laws of the State. The act of Congress had gone into effect on the 8th of August, 1890, providing that imported liquors should be subject to the operation and effect of the State laws to the same extent and in the same manner as though the liquors had been produced in the State, and the law of Kansas forbade the sale. Petitioner was thereby prevented from claiming the right to proceed in defiance

of the laws of the State, upon the implication arising from the want of action on the part of Congress up to that time. The laws of the State had been passed in the exercise of its police powers, and applied to the sale of all intoxicating liquors whether imported or not, there being no exception as to those imported, and no inference arising, in view of the provisions of the State Constitution and the terms of the law (within whose mischief all intoxicating liquors came), that the

CONSTITUTIONAL LAW - TAXATION

INTER-STATE COMMERCE.

UNITED STATES SUPREME COURT, MAY 11, 1891.

PULLMAN'S PALACE-CAR Co. v. COMMONWEALTH OF
PENNSYLVANIA.*

Since a State has the right to tax personal property within
its jurisdiction, even though it is employed in inter-
State commerce, a State tax on such proportion of the
whole capital stock of a foreign sleeping car company as
the number of miles over which its cars are operated
within the State bears to the whole number of miles over
which its cars are operated, is valid and constitutional
though such cars run into, through and out of the State.
N error to the Supreme Court of the State of Penn-
sylvania.

State did not intend imported liquors to be in-sylvania or of any other State, and doing business in

cluded.

We do not mean that the intention is to be imputed of violating any constitutional rule, but that the State law should not be regarded as less comprehensive than its language is, upon the ground that action under it might in particular instances be adjudged invalid from an external cause. Congress did not use terms of permission to the State to act, but simply removed an impediment to the enforcement of the State laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part. It imparted no power to the State not then possessed, but allowed imported property to fall at once upon arrival within the local jurisdiction.

It appears from the agreed statement of facts that this liquor arrived in Kansas prior to the passage of the act of Congress, but no question is presented here as to the right of the importer in reference to the withdrawal of the property from the State, nor can we perceive that the congressional enactment is given a retrospective operation by holding it applicable to a transaction of sale occurring after it took effect. This is not the case of a law enacted in the unauthorized exercise of a power exclusively confided to Congress, but of a law which it was competent for the State to pass, but which could not operate upon articles occupying a certain situation until the passage of the act of Congress. That act in terms removed the obstacle, and we perceive no adequate ground for adjudging that a re-enactment of the State law was required before it could have the effect upon imported which it had always had upon domestic property. Jurisdiction attached, not in virtue of the law of Congress, but be

cause the effect of the latter was to place the property

where jurisdiction could attach.

The decree is reversed and the cause remanded for further proceedings in conformity with this opinion.

HARLAN, GRAY and BREWER, JJ., concurred in the judgment of reversal, but not in all the reasoning of

the opinion of the court.

This was an action brought by the State of Pennsylvania against Pullman's Palace-Car Company, a corporation of Illinois, in the Court of Common Pleas of the county of Dauphin in the State of Pennsylvania, to recover the amount of a tax settled by the auditorgeneral and approved by the treasurer of that State for the years 1870 to 1880, inclusive, on the defendant's capital stock, taking as the basis of assessment such proportion of its capital stock as the number of miles of railroad over which cars were run by the defendant in Pennsylvania bore to the whole number of miles in this and other States over which its cars were run. All these taxes were levied under successive statutes of Pennsylvania, imposing taxes on capital stock of corporations incorporated by the laws of PennPennsylvania, computed on a certain percentage of dividends made or declared. The taxes for 1870 to 1874 were levied under the statute of May 1, 1868, No. 69, section 5, which applied to corporations of every kind, with certain exceptions not material to this case; and fixed the amount of the tax at half a mill on every one per cent of dividend. P. L. 1868, p. 109. The taxes for 1875 to 1877 were levied under the statute of April 24, 1874, No. 31, section 4, which applied to all corporations in any way engaged in the transportation of freight or passengers, and fixed the tax at nine-tenths of a mill on every one per cent of divi dend. P. L. 1874, p. 70. The taxes for 1878 to 1880 were levied under the statutes of March 20, 1877, No. 5, section 3, and of June 7, 1879, No. 122, section 4, applicable to all corporations, except building associations, banks, savings institutions and foreign insurance companies, and fixing the tax at half a mill on each one per cent of dividend of six per cent or more on the par value of the capital stock, and when the dividend was less, at three mills on a valuation of the capital stock. P. L. 1877, p. 8; P. L. 1879, p. 114.

A trial by jury was waived, and the case submitted to the decision of the court, which found the following facts: "The defendant is a corporation of the State of Illinois, having its principal office in Chicago. Its business was, during all the time for which tax is charged, to furnish sleeping-coaches and parlor and dining-room-cars to the various railroad companies with which it contracted on the following terms: The defendant furnished the coaches and cars, and the railroal companies attached and made them part of their trains, no charge being made by either party against the other. The railroad companies collected the usual fare from passengers who travelled in their coaches and cars, and the defendant collected a separate charge for the use of the seats, sleeping-berths and other conveniences. Business has been carried on continuously by the defendant in this way in Pennsylvania since February 17, 1870, and it has had about

*Affirming 107 Penn. St. 156.

one hundred coaches and cars engaged in this way in the State during that time. The cars used in this State have, during all the time for which tax is charged, been running into, through and out of this State." Upon these facts the court held "that the proportion of the capital stock of the defendant invested and used in Pennsylvania is taxable under these acts; and that the amount of the tax may be properly ascertained by taking as a basis the proportion which the number of miles operated by the defendant in this State bears to the whole uumber of miles operated by it, without regard to the question whether any par ticular car or cars were used;" and therefore gave judgment for the State. That judgment was affirmed upon writ of error by the Supreme Court of the State, for reasons stated in its opinion as follows: "We think it very clear that the plaintiff in error is engaged in carrying on such a business within this Commonwealth as to subject it to the statutes imposing taxation. While the tax on the capital stock of a company is a tax on its property and assets, yet the capital stock of a company and its property and assets are not identical. The coaches of the company are its property. They are operated within this State. They are daily passing from one end of the State to the other. They are used in performing the functions for which the corporation was created. The fact that they are also operated in other States cannot wholly exempt them from taxation here. It reduces the value of the property in this State, justly subject to taxation here. This was recognized in the court below, and we think the proportion was fixed according to a just and equitable rule." 107 Penn. St. 156, 160. Pullman's PalaceCar Company sued out a writ of error from this court, and filed six assignments of error, the substance of which was summed up in the brief of its counsel as follows: "The court erred in holding that any part of the capital stock of the Pullman Company was subject to taxation by the State of Pennsylvania by reason of its running any of its cars into, out of, or through the State of Pennsylvania in the course of their employment in the inter-State transportation of railway passengers."

Edward Isham, John S. Runnells, Wm. Burry and M. E. Olmsted, for plaintiff in error.

W. S. Kirkpatrick and J. F. Sanderson, for Commonwealth.

GRAY, J. Upon this writ of error, whether this tax was in accordance with the law of Pennsylvania is a question on which the decision of the highest court of the State is conclusive. The only question of which this court has jurisdiction is whether the tax was in violation of the clause of the Constitution of the United States granting to Congress the power to regulate commerce among the several States. The plaintiff in error contends that its cars could be taxed only in the State of Illinois, in which it was incorporated, and had its principal place of business. No general principles of law are better settled or more fundamental than that the legislative power of every State extends to all property within its borders, and that only so far as the comity of that State allows can such property be affected by the law of any other State. The old rule, expressed in the maxim mobilia sequuntur personam, by which personal property was regarded as subject to the law of the owner's domicile, grew up in the Middle Ages, when movable property consisted chiefly of gold and jewels, which could be easily carried by the owner from place to place, or secreted in spots known only to himself. In modern times, since the great increase in amount and variety of personal property, not immediately connected with the person of the owner, that rule has yielded more and more to the lex situs-the law of the place where the property

is kept and used. Green v. Van Buskirk, 5 Wall. 307, and 7 id. 139; Hervey v. Locomotive Works, 93 U. S. 664; Harkness v. Russell, 118 id. 663, 679; Walworth v. Harris, 129 id. 355; Story Coufl. Laws, § 550; Whart. Confil. Laws, §§ 297-311. As observed by Mr. Justice Story, in his Commentaries just cited: "Although movables are for many purposes to be deemed to have no situs except that of the domicile of the owner, yet. this being but a legal fiction, it yields whenever it is necessary for the purpose of justice that the actual situs of the thing should be examined. A nation within whose territory any personal property is actually situate has an entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situate there." For the purposes of taxation, as has been repeatedly affirmed by this court, personal property may be separated from its owner; and he may be taxed on its account at the place where it is, although not the place of his own domicile, and even if he is not a citizen or a resident of the State which imposes the tax. Lane Co. v. Oregon, 7 Wall. 71, 77; Railroad Co. v. Pennsylvania, 15 id. 300, 323, 324, 328; Railroad Co. v. Peniston, 18 id. 5, 29; Tappan v. Bank, 19 id. 490, 499; State Railroad Tax Cases, 92 U. S. 575, 607, 608; Brown v. Houston, 114 id. 622; Coe v. Errol, 116 id. 517, 524; Marye v. Railroad Co., 127 id. 117, 123. It is equally well settled that there is nothing in the Constitution or laws of the United States which prevents a State from taxing personal property employed in inter-State or foreign commerce like other personal property within its jurisdiction. Delaware Railroad Tax, 18 Wall. 206, 232; Telegraph Co. v. Texas, 105 U. S. 460, 464; Ferry Co. v. Pennsylvania, 114 id. 196, 206, 211; Telegraph Co. v. AttorneyGeneral, 125 id. 530, 549; Marye v. Railroad Co., 127 id. 117, 124; Leloup v. Mobile, id. 640, 649. Ships or vessels indeed engaged in inter-State or foreign commerce upon the high seas or other waters which are a common highway, and having their home port, at which they are registered under the laws of the United States at the domicile of their owners, in one State, are not subject to taxation in another State at whose ports they incidentally and temporarily touch for the purpose of delivering or receiving passengers or freight. But that is because they are not, in any proper sense, abiding within its limits, and have no continuous presence or actual situs within its jurisdiction, and therefore can be taxed only at their legal situs-their home port, and the domicile of their owners. Hays v. Steamship Co., 17 How. 596; St. Louis v. Ferry Co., 11 Wall. 423; Morgan v. Parham, 16 id. 471; Ferry Co. v. East St. Louis, 107 U. S. 365; Ferry Co. v. Pennsylvania, 114 id. 196. Between ships and vessels, having their situs fixed by act of Congress, and their course over navigable waters, and touching land only incidentally and temporarily, and cars or vehicles of any kind, having no situs so fixed, and traversing the land only, the distinction is obvious. As has been said by this court: "Commerce on land between the different States is so strikingly dissimilar, in many respects, from commerce on water, that it is often difficult to regard them in the same aspect in reference to the respective constitutional powers and duties of the State and Federal governments. No doubt commerce by water was principally in the minds of those who framed and adopted the Constitution, although both its language and spirit embrace commerce by land as well. Maritime transportation requires no artificial roadway. Nature has prepared to hand that portion of the instrumentality employed. The navigable waters of the earth are recognized public highways of trade and intercourse. No franchise is needed to enable the navigator to use them. Again the vehicles of commerce by water being instruments of intercommunication with other nations, the regulation of them is assumed by the National Legislature. So that State

L

interference with transportation by water, and especially by sea, is at once clearly marked and distinctly discernible. But it is different with transportation by land." Railroad Co. v. Maryland, 21 Wall. 456,

470.

In Ferry Co. v. Pennsylvania, on which the plaintiff in error much relies, the New Jersey corporation taxed by the State of Pennsylvania, under one of the statutes now in question, had no property in Pennsylvania except a lease of a wharf at which its steamboats touched to land and receive passengers and freight carried across the Delaware river; and the difference in the facts of that case and of this and in the rules applicable was clearly indicated in the opinion of the court as follows: "It is true that the property of corporations engaged in foreign or inter-State commerce, as well as the property of corporations engaged in other business, is subject to taxation, provided always it be within the jurisdiction of the State." 114 U. S. 206. "While it is conceded that the property in a State belonging to a foreign corporation engaged in foreign or inter-State commerce may be taxed equally with like property of a domestic corporation engaged in that business, we are clear that a tax or other burden imposed on the property of either corporation because it is used to carry on that commerce, or upon the transportation of persons or property, or for the navigation of the public waters over which the transportation is made, is invalid and void as an interference with and an obstruction of the power of Congress in the regulation of such commerce." 114 U. S. 211. Much reliance is also placed by the plaintiff in error upon the cases in which this court has decided that citizens or corporations of one State cannot be taxed by another State for a license or privilege to carry on inter-State or foreign commerce within its limits. But in each of those cases the tax was not upon the property employed in the business, but upon the right to carry on the business at all, and was therefore held to impose a direct burden upon the commerce itself. Moran v. New Orleans, 112 U. S. 69, 74; Pickard v. Car Co., 117 id. 34, 43; Robbins v. Taxing Dist., 120 id. 489, 497; Leloup v. Mobile, 127 id. 640, 644. For the same reason a tax upon the gross receipts derived from the transportation of passengers and goods between one State and other States or foreign nations has been held to be invalid. Fargo v. Michigan, 121 U. S. 230; Steamship Co. v. Pennsylvania, 122 id. 326.

The tax now in question is not a license tax or a privilege tax; it is not a tax on business or occupation; it is not a tax on or because of the transportation or the right of transit of persons or property through the State to other States or countries. The tax is imposed equally on corporations doing business within the State, whether domestic or foreign, and whether engaged in inter-State commerce or not. The tax on the capital of the corporation on account of its property within the State is, in substance and effect, a tax on that property. Ferry Co. v. Pennsylvania, 114 U. S. 196, 209; Telegraph Co. v. Attorney-General, 125 id. 530, 552. This is not only admitted, but insisted on, by the plaintiff in error.

The cars of this company within the State of Pennsylvania are employed in inter-State commerce; but their being so employed does not exempt them from taxation by the State; and the State has not taxed them because of their being so employed, but because of their being within its territory and jurisdiction. The cars were continuously and permanently employed in going to and fro upon certain routes of travel. If they had never passed beyond the limits of Pennsylvania, it could not be doubted that the State could tax them, like other property within its borders, notwithstanding they were employed in inter-State commerce. The fact that instead of stopping at the State boundary, they cross that boundary in going out and

coming back, cannot affect the power of the State to levy a tax upon them. The State, having the right, for the purposes of taxation, to tax any personal property found within its jurisdlotion, without regard to the place of the owner's domicile, could tax the specific cars which at a given moment were within its borders. The route over which the cars travel extending beyond the limits of the State, particular cars may not remain within the State; but the company has at all times substantially the same number of cars within the State, and continuously and constantly uses there a portion of its property; and it is distinctly found, as a matter of fact, that the company continuously, throughout the periods for which these taxes were levied, carried on business in Pennsylvania, and had about one hundred cars within the State.

The mode which the State of Pennsylvania adopted to ascertain the proportion of the company's property upon which it should be taxed in that State was by taking as a basis of assessment such proportion of the capital stock of the company as the number of miles over which it rau cars within the State bore to the whole number of miles in that and other States over which its cars were run. This was a just and equitable method of assessment; and if it were adopted by all the States through which these cars ran, the company would be assessed upon the whole value of its capital stock, and no more. The validity of this mode of ap portioning such a tax is sustained by several decisions of this court in cases which came up from the Circuit Courts of the United States, and in which therefore the jurisdiction of this court extended to the determination of the whole case, and was not limited, as upon writs of error to the State courts, to questions under the Constitution and laws of the United States.

In the State Railroad Tax Cuses, 92 U. S. 575, it was adjudged that a statute of Illinois, by which a tax on the entire taxable property of a railroad corporation, including its rolling stock, capital and franchise, was assessed by the State board of equalization, and was collected in each municipality in proportion to the length of the road within it, was lawful, and not in conflict with the Constitution of the State; and Mr. Justice Miller, delivering judgment, said: "Another objection to the system of taxation by the State is that the rolling stock, capital stock and franchise are personal property, and that this, with all other personal property, has a local situs at the principal place of business of the corporation, and can be taxed by no other county, city or town but the one where it is so situated. This objection is based upon the general rule of law that personal property, as to its situs, follows the domicile of its owner. It may be doubted very reasonably whether such a rule can be applied to a railroad corporation as between the different localities embraced by its line of road. But after all the rule is merely the law of the State which recognizes it; and when it is called into operation as to property located in one State and owned by a resident of another, it is a rule of comity in the former State, rather than an absolute principle in all cases. v. Van Buskirk, 5 Wall. 312. Like all other laws of a State, it is therefore subject to legislative repeal, modification or limitation; and when the Legislature of Illinois declared that it should not prevail in assessing personal property of railroad companies for taxation, it simply exercised an ordinary function of legisla tion." 92 U. S. 607, 608. "It is further objected that the railroad track, capital stock and franchise is not assessed in each county where it lies, according to its value there, but according to an aggregate value of the whole, on which each county, city and town collect taxes according to the length of the track within its limits." "It may well be doubted whether any better mode of determining the value of that portion of the

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