filed the following dissenting opinion.
In my judgment the fundamental question in this case is, whether the legislature of Pennsylvania possesses the lawful power to impose the particular form of taxation sought to be enforced. The subject-matter of the proposed taxation is capital stock of a foreign corporation. The corporation defendant is established and exists by the law of New Jersey. Its entire capital is there held by persons who reside in that state. Its place of business, its officers and all its property are within that jurisdiction. It has never received, or claimed, the benefit of any legislation of this Commonwealth. Have we the right in these circumstances to tax its capital stock ? In the case of the State Tax on Foreign-held Bonds, 15 Wall. 300, it was held that “ the power of taxation, however vast in its character and searching in its extent, is necessarily limited to subjects within the' jurisdiction of the state. These subjects are persons, property and business. Whatever form taxation may assume, whether as duties, imposts, excises or licenses, it must relate to one of these subjects. It is not possible to conceive of any other, though,' as applied to them, the taxation may be exercised in a great variety of ways.” Now in the present case the proposed tax is levied upon a form of property — capital stock. It is not a tax upon persons, natural or artificial. It is not, specifically, a tax upon business. By the case stated it is declared that it is a tax upon the capital stock of the corporation defendant, and it is agreed that if the court shall be of opinion that the defendant is not liable to pay a tax on its capital stock judgment shall be entered in its favor. In view 'of these consiclerations the question recurs, how can this tax be sustained? It is directly and speeifi- • cally a tax upon capital stock which is neither in fact or law within the jurisdiction of the State of Pennsylvania. In the case of Maltby v. Reading & Columbia R. R. Co., 2 P. F. Smith on p. 146, this court said: “ It is undoubtedly true that the legislature of Pennsylvania cannot impose a personal tax upon the citizen of another state, but the constant practice is to tax property within our jurisdiction which belongs to non-residents.” *118. . . “ There must be jurisdiction over either the property or the person of the owner, else the power cannot be exercised; but where the property is within our jurisdiction and enjoys the protection of our state government it is justly taxable, and it is of no mbment that the owner who is required to pay the tax resides elsewhere.” See also St. Louis v. The Ferry Co. 11 Wall, on p. 430. It is clear to my mind that, viewed as a tax upon property which is not within the jurisdiction of this Commonwealth, the proposed tax is invalid.
But it is claimed that the corporation defendant does business within the Commonwealth, and therefore comes within the words of the 4th section of the Act of May 1st 1868, which imposes taxation upon the capital stock of all companies incorporated by the law of this Commonwealth, or of “any other state, .and lawfully doing business in this Commonwealth.” The conclusion is drawn that because the defendant does business within our limits the tax upon its capital stock is lawful for the reason that the statute authorizes it. It will be perceived that this conclusion is not legitimate unless, as to this particular case, the statute is a valid exercise of legislative power; Without that element the words of the statute, as to the present controversy, are merely nugatory, and hence we are at once and necessarily remitted to the inquiry, can the Legislature lawfully impose such a tax ? It may be conceded that, as a general rule, if the particular business done is done by virtue, or, indeed, by permission, of legislative authority, the right to tax exists. For then, there is a subordination of the corporate action to the legislative will which carries with it the power of prescribing the terms upon which the corporate action shall be exercised. This would certainly apply to all cases in which the right to come within the territorial limits of the state, and construct buildings or works of any kind, and cany on business, is conferred upon foreign corporations. When such corporations ac'cept such privileges, they of course become subject to the jurisdiction and supervision of the legislative authority from which those privileges are obtained. But this doctrine fails of application if the particular business done does not depend upon either the express or implied consent of the legislative authority of the territory where it is conducted. This leads us to consider the character of the business done by the corporation defendant. In the case stated this subject is thus described : “ It (the defendant) has never transacted any other business saving that of ferrying passengers and freight across said river between said town and city.” The points between which this carriage of freight and passengers transpires are the town of Gloucester, in the state of New Jersey, and the city of Philadelphia, in the *119State of Pennsylvania, and tlie space traversed is the water of the river Delaware, and the means employed are steam ferryboats. The waters of the river Delaware, at the port of Philadelphia, constitute one of the highways of nature, and the commerce of all the states, indeed, of all the world, may traverse them without the necessity of obtaining the consent of the legislature of Pennsylvania. When the ferry-boats of the defendant touch the territory of Pennsylvania at their landing-place in Philadelphia, they are in contact with our soil, but they have not traversed any portion of it. The surface of the river being that of a public navigable stream, does not belong to the coterminous states in the sense of exclusive ownership, whatever may be the title to the bed underneath. In the case of St. Louis v. The Ferry Co., 11 Wall. 423, it was held that the ferryboats of a corporation incorporated in one state and carrying passengers and freight forward and back across a river to a city situated in another state, are not taxable under a law taxing boats within the city, in a case where the relation of the boats to the city was simply that of contact, as one of the termini of the voyage. In this case the boats plied between East St. Louis, in the state of Illinois, where the Ferry Co. was incorporated, and the city of St. Louis, in the state of Missouri. On p. 431, in speaking of the relation of the boats to the city, the court say, “ Their relation to the city was merely that of contact there, as one of the termini of their transit across the river in the prosecution of their business.” This being so it is evident that in traversing the river the boats of the defendant are not to be regarded as in the use and occupancy of any part of the soil of the state. Is, then, the discharge and receipt of passengers and freight on and from the wharf at Philadelphia, such a transaction of business within our territory as subjects the parties engaged in it to state taxation for the exercise-of the privilege? In other words, may a state impose taxation either directly or indirectly upon traffic between the states? I am clear that such a power does not exist, because it would be in direct contravention of at least two distinct provisions of the federal constitution. 1st. That which declares that “no state shall, without the consent of congress, lay any imposts or duties on imports or exports except what may be absolutely necessary for executing its inspection laws.” 2d. That which declares that congress shall have power to regulate commerce with foreign nations and among the several states and with the Indian tribes.
It cannot be questioned that the transportation of freight and passengers, over navigable waters, in vessels, is commerce in its most essential features. In Brown v. State of Maryland *120(12 Wheat. 119), Ch. J. Marshall, in defining commerce, said, “Commerce is-intercourse; one of its most ordinary ingredients is traffic.” Again, in Gibbons v. Ogden (9 Wheat. 1), he 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.” . . . “ The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it.” . . . “The word used in the Constitution then, comprehends and has been always understood to comprehend, navigation within its meaning, and a power to regulate navigation is as expressly granted as if that term had been added to the word ‘commerce.’ . . . The subject to which, the word is next applied is to commerce ‘ among the several states.’ The word ‘ among,’ means intermingled with — a thing which is among others, is intermingled with them — commerce among the states cannot stop at the external boundaiy line of each state, but may be introduced into the interior.” These judicial definitions are sufficiently precise to establish that the word ‘ commerce,” as used in the federal Constitution, imports and ncludes intercourse and traffic between the states of the Union >ver navigable waters, as well as between the states and foreign countries. It follows, as was held in the cases cited and in other cases, that the power to regulate inter-state commerce resides in the federal government and not in the states, and therefore the right to conduct this commerce or traffic does not depend upon the will of the states, but may be exercised altogether independently of them. Cb. J. Marshall further said, in the case last cited : “ The power of congress, then, comprehends navigation, within the limits of every state in the Union, so far as that navigation may be in any manner connected with ‘ commerce with foreign nations, or among the several states or with the Indian tribes.’ It may of consequence pass the jurisdictional line of New York and. act upon the very waters to which the prohibition now under consideration applies.” While it is undoubtedly true that commerce among the states is a subject of congressional regulation and control, it is also true that a great variety of legislation by the states may lawfully be applied to it. These are ordinarily called police regulations, and are known as inspection laws, quarantine laws, health laws and others of a similar character, and they are clearly defined by Agnuw, J., in the opinion of this court in the case of Craig v. Kline (15 P. F. S. 399). 13ut the power to impose taxation in any form npon inter-state commerce has been uniformly held by the Supreme *121Court of the United States, and by several of the state courts of last resort, to reside in congress alone. Accordingly, in whatever form the question has arisen, and with whatever degree of indirectness state taxation has been imposed upon either foreign or inter-state commerce, it has been always rejected by the supreme judicial authority of the land, as an incompetent exercise of legislative power by the states. In the case of McCulloch v. State of Maryland (4 Wheat. 316), it was held that the legislature of Maryland had no power to impose taxation upon the circulation of the Bank of the United States which had established a branch in that state. The following propositions, amongst others were ruled in that case.
The Bank of the United States has constitutionally a right to establish its branches or offices of discount and deposit within any state.
The state within which such branch may be established cannot, without violating the Constitution, tax that branch ; tire state governments have no right to tax any of the constitutional means employed by the government of the Union to execute its constitutional powers.
The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by congress to carry into effect the powers vested in the national government.
In the case of Brown v. State of Maryland (12 Wheat. 419) it was held that an act of a state legislature, requiring all importers of foreign goods by the bale or package, &c., and other persons selling the same by wholesale, bale or package, &c., to take out a license for which they shall pay $50, and in case of neglect or refusal to take out such license, subjecting them to certain forfeitures and penalties, is repugnant to that provision of the Constitution of the United States, which declares that, “ no state shall, without the consent of congress, lay any impost or duty on imports or exports except what may be absolutely necessary for executing its inspection lawsand to that which declares that congress shall have power “ to regulate commerce with foreign nations, among the several states, and with the Indian tribes.” It will be perceived that the act in question, of the state of Maryland, simply required importers of foreign goods to take out and pay for a state license before selling their imported goods. But it was held that the license fee was, in practical effect, the equivalent of a duty on imports, and that it was also a restriction upon foreign commerce, and therefore came in conflict with both the constitutional prohibitions above stated. The Chief Justice reasoned thus: “.There is no difference, in effect, between a power to prohibit the sale of an arti- • *122ele, and a power to prohibit its introduction into the country. The one would be a necessary consequence of the other. .No goods would be imported if none could be sold. No object of any description can be accomplished by laying a duty on importation, which may not be accomplished with equal certainty by laying a duty on the thing imported, in the hands of the importer. It is obvious that the same power which imposes a light duty, can impose a very heavy one ; one which amounts to a prohibition. Questions of power do not depend on the degree to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those in whose hands it is placed.” It seems to me that this reasoning is entirely applicable to the case at bar. If the business done by the defendant may be used as a means of imposing a tax not otherwise lawful, and yet this business is not subject to the taxing power of the state, then all inter-state commerce, and, indeed, foreign commerce also, becomes dependent upon the will of the states, and may be controlled and even prohibited by them, though in clear violation of the constitutional provisions. If Pennsylvania may impose a tax on the capital stock of a foreign navigation company, because one of its vessels touches at one of her ports, and there discharges and receives passengers and freight, then every' other state at whose ports other vessels of the same company may transact the same kind of business, may impose the same tax. Or if the same vessel touches at different state ports on our coast, the entire capital stock of the company owning her may be taxed at each port, and thus the whole commerce conducted by such company may be destroyed. The case of Brown v. Maryland, above cited, proves that it is not at all necessary to show that such results liave followed or will follow; it is enough to show that they are possible. In discussing the clause relating to the regulation of commerce, Oh. J. Marshall further says: “ If the states may tax all persons and property found on - their territory, what shall restrain them from taxing goods in their transit through the state from one port to another for the purpose of re-exportation.” . . “ Or from taxing the transportation of articles passing from the state itself to another state for the purpose of traffic ? ” Here is a direct denial of the right to do the very thing which is sought to be done in the present case; to wit, taxing the transportation of articles from state to state. It matters not that it is indirectly done. The result is precisely the same as if done directly. It cannot be that a state may tax the capital stock of a corporation because it does a certain kind of business, when the business itself is not within the power of state taxation. In the case of McCulloch v. Maryland, before quoted, the Chief Justice said : “ That the power*123td tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied.”
In the case of Gibbons v. Ogden, 9 Wheat. 1, the following propositions were declared:
The power to regulate commerce extends to every species of commercial intercourse between the United States and foreign nations, and among the several states.
The power to regulate commerce is general, and has no limitations but such as are prescribed in the constitution itself.
The power to regulate commerce, so far as it extends, is exclusively vested in congress, and no part of it can be exercised by a state.
The power of regulating commerce extends to navigation carried on by vessels exclusively employed in . transporting passengers.
Cb. J. Marshall, in the course of his opinion, says: “Vessels have always been employed, to a greater or less extent, in the transportation of passengers, and have never been supposed to be, on that account, withdrawn from the control or protection of congress.”
In Cooley’s Constitutional Limitations, p. 591, the .writer says: “ Congress is empowered to regulate commerce with foreign nations and among the several states : and wherever a river forms a highway upon which commerce is conducted with foreign nations, or between states, it must fall under the control of congress, under this power over commerce.”
In the Jrassenger Cases, 7 Howard 283, it was held that a state law which requires the masters of vessels engaged in foreign commerce to pay a certain sum to a state officer, on account of every passenger brought from a foreign country into the state, or before landing any alien passenger in the state, is inoperative by reason of its conflict with the constitution and laws of the United States. •
This was a much contested case, and there was a wide difference of opinion among the judges who decided it. Several of them, regarding the laws in question as police regulations and health laws, dissented, and held them to be within the power of the state, but the decision of the majority was the other way, and has received the assent of the bench and bar of the country to the present time.
McLean, J., in delivering the opinion of the majority, said: *124“ Commerce is defined to be an £ exchange of commodities.’ But this definition does not convey the full meaning of the term. It includes £ navigation and intercourse.’ That the transportation of passengers is a part of commerce is not now an open question.” The decision of the cause, was put upon the ground that the transportation of passengers was a part of commerce, and therefore it was subject to federal control and regulation, and it was not competent for a state to impose taxation upon it in any form.
In the case of Hays v. Pacific Mail Steamship Co., 17 How. 596, it was held that an ocean steamer owned and registered in New York, and regularly plying between Panama and San Francisco and ports in Oregon, remaining in San Francisco no longer than is necessary to land and receive passengers and cargo, and in Benicia only for repairs and supplies, is not subject to taxation by the state of California.
One of the reasons for the decision is thus stated in the opinion of the court: “Now it'is quite apparent that if the state
of California, possessed the authority to impose the tax in question, any other state in the Union, into the ports of which the vessels entered in the prosecution of their trade and business, might also impose a -like tax.”
In the case of Crandall v. State of Nevada, 6 Wall. 35, it was decided that a special tax on railroad and stage companies, for every passenger carried out of the state by them, is a tax on the passenger for the privilege of passing through the state by the ordinary modes of travel, and while it was not a tax on the business of the companies, and was not in conflict with the provision in the Constitution forbidding a state to lay a duty on exports, nor with the provision conferring on congress the power to regulate commerce, yet it was void under the federal Constitution as interfering with the rights, both of the United States, to have the attendance of citizens at all points where the functions of government are to be performed, and of the citizens themselves to enjoy the’free light of transit by the ordinary means of travel through the several states.
It will be observed that in this case the tax was a local one, imposed upon local companies within the state jurisdiction and upon business done within the state. There was no express provision of the federal Constitution with which the legislation imposing the tax conflicted, nevertheless, it was held void because it was indirectly, though not directly, a tax on the privilege of free transit through the several states. Miller, J., on p. 46, reasons thus : “ But if the state can tax a railroad passenger one dollar, it can tax him one thousand dollars. If one ’ state can do this, so can every other state. And thus one or *125more states, covering tlie only practicable routes of travel from east to west, or from the north to the south, may totally prevent or seriously burden all transportation of passengers from one part of the country to the other.”
On p. 49, Justice Miller quotes and adopts the following portion of the dissenting opinion of Chief Justice Taney, on a point not disputed in the Passenger Cases: “ We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it, without interruption, as freely as in our own states. And a tax imposed by a state for entering its territories or harbors, is inconsistent with the rights whicli belong to citizens of other states as members of the Union, and with the objects which that Union was intended to attain. Such a power in the states could produce nothing but discord and mutual irritation, and they very clearly do not possess it.”
In the case of the State Tax on Pail way Gross Receipts, 15 Wall. 284, it was conceded throughout the opinion of the majority of the court that if the taxation there in question had been upon the transportation of freight from one state to another, it would have been invalid. Strong, J., on p. 292, said: “ We have recently decided in another case between the parties to the present suit, that freight transported from state to state is not subject to state taxation because thus transported. Such a burden we regard as an invasion of the domain of federal power, a regulation of inter-state commerce which congress only can make.”
In the case of Cannon v. New Orleans, 20 Wall. 577, it was held-that any duty, or tax, or burden, imposed under the authority of the states, which is in its essence a contribution claimed for the privilege of arriving and departing from a port of the United States, and which is assessed on a vessel according to its carrying capacity, is a tonnage tax within the meaning of the federal Constitution, and therefore void.
The ordinance in question in this case imposed “levee dues” on all steamboats moving or landing at the port of New Orleans, and measured the amount by the tonnage of the vessels. It was decided that although the levee dues were imposed as a compensation for the commercial facilities afforded by the city, and did not purport to be a duty on tonnage, yet the practical effect of their imposition was to create such a burden, and as the privilege of arriving and departing was the real basis of the claim for dues, the ordinance was declared.void, as being contrary to the federal Constitution.
Thus we see that in whatever manner, or by whatever devices, the right to transport passengers or freight from one State *126to another has been made the subject of state taxation of any kind or for any purpose,, such taxation has been declared void as contrary to the federal Constitution. The validity of such taxation cannot depend upon the character of the person exercising the right of transportation in question. It has been repeatedly held that a corporation is a citizen of the state by whose law it is created. But whether the person exercising the right of transportation under consideration be natural or artificial, the applicability of the constitutional prohibition must be the same in either case.
It is equally immaterial that a wharf is leased in Philadelphia by the defendant, on which its business of discharging and receiving passengers and freight is conducted. The use of such a wharf is a mere incident to the business, and can in no sense suffice to remove the fundamental invalidity of the proposed taxation. That taxation is void because the state has no power to impose it upon any body, or in any circumstances, or for any cause.
1 cannot assent to the’ position that the defendant becomes subject to a right of taxation by the legislature of Pennsylvania because it exercises its functions within our territory by implication under the law of international comity. Such implication might justify a taxation which could be lawfully imposed, but it cannot suffice to remove the taint of absolute invalidity. A right to tax cannot exist by mere implication when it could not be exercised by direct legislation. If our legislature should pass a law imposing directly a tax upon the transportation of passengers and freight between the states of New Jersey and Pennsylvania it would undoubtedly be void, as contrary to the federal Constitution. No such power exists in the states. But if a state cannot impose such taxation by express enactment, of course it cannot do so by any species of implication.
I am of opinion that the taxation sought to be imposed in the present case cannot be sustained, because, First. As a tax upon capital stock specifically it is invalid for want of jurisdiction.
Second. As a tax upon capital stock by reason of business done within the Commonwealth, the particular business done being the transportation of freight and passengers over public navigable waters from one state to' another, is not within the power of state taxation, and hence our Act of 1868 is inapplicable to the case.
For these reasons I feel obliged to dissent from the opinion of the majority of the court, reversing the judgment of the court below.
*127A petition for a reargument was subsequently filed by the defendant in error, on the ground that the attention of the court had not been called to a contract .entered into between the states of Pennsylvania and New Jersey, in 1771, whereby it was agreed that the river Delaware should be and remain a common highway, free to both contracting parties: Act of Penna. March 9th 1771, 1 Sm. L. 322; Act of New Jersey, December 22d 1771, Allinson’s Laws 347.
October 31st 1881. Per Curiam. Petition for rehearing refused.