I am compelled to dissent from the judgment of my associates in this case. I do not regard the Act of April 26th, 1862, as in conflict with any provisions of the Constitution of the United States or of this State. The act, in my judgment, merely provides for a tax upon a certain class of residents, and is the legitimate exercise of the taxing power of the State. It does not interfere with the landing of Mongolians within the State; it does not impose any tax upon them as emigrants; nor is it directed to their exclusion from the State. The title of the act, it is true, is open to criticism, but the title is never held to control the legislative intent. “ Originally,” as I had occasion to observe in another case, “ it was considered as constituting no part of the act, 1 no more,’ says Lord Holt, ‘ than the title of a hook is part of a book.’ (Willis v. Welkins, 6 Mod. 62; Rex v. Williams, 1 W. Bl. 85; 3 R. 35—Poulter’s case.) It was usually framed by the Clerk of the house in which the bill first passed, or by the Judges after the receipt of the King’s answer to the petition of the Commons, and was intended only as a convenient mode of reference. At the present day it is seldom the subject of legislative discussion, and is evidence of little more than that the originator of the act saw fit to designate it by the particular name. Attorney General v. Lord Weymouth, (1 Ambler, 22.) The legislative intent is to be sought in the purview or body of the act, and where the language in this part is clear and unambiguous, no other part can avail to contradict or control it. The title can be resorted to only in cases of ambiguity, and is then of slight value. ‘ It can only be used,’ says Sedgwick on Statutes, ‘ for the fact of the makers having given a law a certain name, if that fact can render any assistance in doubtful cases.’ ” (Ex parte Newman, 9 Cal. 522.)
Looking, then, to the purview or body of the act, I find that it provides only for a tax upon a certain class of residents. It does not impose a tax upon Mongolians, who may happen to be within the State for a temporary purpose, or passing through it to an inte*583rior State, but upon such Mongolians as have become residents of the State; and not upon all of them. It does not impose a tax upon those who may take out licenses to work in the mines, or to prosecute any other business, nor upon those who may be exclusively engaged in the production of sugar, rice, coffee or tea; nor upon persons under the age of eighteen years. In what way this act interferes with the power of Congress to regulate commerce with foreign nations I am unable to perceive. In the cases of Smith v. Turner, and Norris v. The City of Boston, (7 How. 283) commonly known as the Passenger Cases, the Supreme Court of the United States held that foreigners arriving at any port of the United States from foreign ports were, whilst they remained on board of the vessels in which they arrived, exempt from State taxation, and that the acts of the State imposing a tax upon them, or upon the master of the vessel on then.1 account, to be paid before they were landed, were unconstitutional and void, as being in their nature regulations of commerce. But between the acts considered in those cases and the act of this State there is a wide difference. By the former acts the tax was to be paid as a condition of landing the passengers. Congress had provided by its legislation for the trans portation of passengers from foreign ports to the ports of the United States as a branch of commerce; the State laws interfered with this legislation, and imposed other conditions ; they were therefore encroachments upon the exclusive power vested in Congress under the Federal Constitution. The act of this State imposes no tax as a condition of the landing of Mongolians; nor does it require their removal from the State in case of their refusal to pay the tax levied. La case of its nonpayment the act authorizes—-just as it does in the case of the nonpayment of poll-taxes levied upon other residents of the State—a seizure and sale by the Collector of the personal property of the delinquent.
In the Passenger Cases it was conceded by the Judges of the Supreme Court, who expressed any opinions, that so soon as the foreigner’s landed and became, as residents, a portion of the population of the State, they were subject'to the laws of the State, and to such taxation as the State by her legislation might direct. “ When passengers leave the ship,” said Mr. Justice McLean, “ and mingle *584with the citizens of the State, they become subject to its laws.” (7 How. 405.) “ It is also insisted,” observed Mr. Justice Catron, “ that the States may tax all persons and property within their respective jurisdictions, except in cases where they are affirmatively prohibited. This is a truism not open to denial. Certainly the States may tax their own inhabitants at discretion, unless they have surrendered the power. (452.) “ It is admitted,” is the language of Mr. Chief Justice Taney, “ that they (passengers who were foreigners) are not exempt from taxation after they are on shore.” (491.) “It seems conceded,” declares Mr. Justice Woodbury, “ that if this, as a tax, had not been imposed till the passenger had reached the shore, the objection urged to the law must fail.” (581.)
The case at bar appears to me, from the language cited, to he expressly excepted from the operation of the decision of the Court in the Passenger Cases. It was not considered by the Judges as a question open to argument, that foreigners, after they had ceased to be passengers, and had become residents, were subject to the taxing power of the State. When their condition as passengers was ended, the power of Congress over them, as subjects within its commercial regulations, was exhausted, and the power of the State began. I concur fully, therefore, in the opinion of Mr. Justice Bennett in People v. Naglee, (1 Cal. 237) and I do not see how this Court can hold the law under consideration to be in conflict with the Constitution of the United States, without overruling the decision in that case. The question there presented and decided was the constitutionality of a law of the State requiring foreigners to pay a license tax for the privilege of working in the mines. Ho such license tax was exacted from other residents for the privilege, and to uphold the law it became necessary to consider the power of the State to tax foreigners as a class, after they had become residents of the State, and this subject was ably and elaborately considered by Mr. Justice Bennett. After observing that the power of taxation, in independent nations, is unrestricted as to things, and with the exception of foreign embassadors and agents, and their retinue, is unlimited as to persons, and citing from the Passenger Cases, substantially as I have done, the learned Justice says : “ The above, then, being the inherent power of taxation in every independent community, *585and this power not having been parted with by the people of the States when they organized the Federal Government, it consequently extends to all persons within the territorial jurisdiction of the respective States, and embraces foreigners residing therein as well as citizens. The power being conceded, the limitation and extent thereof must, as to subject matter, persons, amounts and times of payment, rest in the discretion of the Government of each State ; and if a State, enacting laws in pursuance of this acknowledged power, sees fit to impose the burden of taxation upon a portion of the persons within the sphere of its jurisdiction, and speciaEy exempt others, its legislation, even though it might be unequal and unjust, would yet be no infringement of the Constitution of the United States.”
Much stress is placed upon the fact that commerce, as defined by the Supreme Court, not only means traffic, but also intercourse. Thus, in Gibbons v. Ogden, (9 Wheat. 567) the Chief Justice 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.” This language was used in answer to the position of counsel in that case, who contended that the meaning of the word was limited to traffic, to buying and selling, or the interchange of commodities, and did not comprehend navigation. It is commercial intercourse to which the Court had reference; and though this embraces the intercourse of persons for the purposes of trade, it never was intended to include such a control over the condition of foreigners who have become residents of a State, and their personal intercourse with other residents, as to exempt them from taxation by State legislation. In the Passenger Cases reference is repeatedly made to the language used in Gibbons v. Ogden, that commerce is intercourse; and yet it was conceded by the Judges in those cases, as I have already shown by citations from their opinions, that so soon as foreigners become residents of a State, they are subject to her laws and to such taxation as she may authorize.
The objection that if the right to levy the tax in question be sustained there is no limit to the power of the State, and the tax *586may be made so great and oppressive as to drive all Mongolians from the State, does not alter the question. All power, wherever lodged, is subject to abuse, lío one doubts that the State may impose a license tax upon certain professions and trades, and yet it would be an unsound argument to urge against the power of the State, that if admitted it might be abused, and the tax placed so high as virtually to destroy them. “ The sure guarantee,” said Mr. Justice Bennett, in the case from which I have already cited, “ against the abuse of this power, as of all other powers, exists in the fact that an unjust, partial or impolitic law can, under our system of government, be but of short duration, after it shall have begun to react upon the people or destroy the business of the community.” “It is admitted,” said Chief Justice Marshall, in McCullough v. Maryland, (4 Wheat. 428) “ that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable to the utmost extent to which the Government may choose to carry it. The only security against the abuse of this power is found in the structure of the Government itself.”
For the reasons stated, I am of opinion that the judgment of the Court below should be affirmed.