dissenting. By the constitution of the United States, it is declared that “ the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states, or to the people.” A power to tax all the persons and property and occupations within the limits of a state, is a necessary incident to state sovereignty; and if that power has been abandoned or restricted, the abandonment or restriction must be found clearly éxpressed, or necessarily implied, in the provisions of the *484federal constitution. The prohibition ought to be plain or the implication necessary, since it is not to be presumed that the states would permit doubtful or refined construction to deprive them of so essential an element of existence.
No subject was more thoroughly discussed, none better understood or more generally agreed upon in the convention of 1787, than the propriety and necessity, conceded on all sides, of vesting the federal government with such powers as would effectually put a stop to the conflicting commercial regulations in the different seaboard states, which had produced a vast deal of complaint, a great amount of inconvenience, and probably real hardship upon the states in the interior or without harbors, and which, in truth, was one of the principal and immediate incentives to the meeting at Annapolis, which preceded the more general convention in Philadelphia. We learn from Mr. Madison’s papers, as well as from the resolutions of several of the states, that this subject was the only ostensible avowed purpose which it was proposed to accomplish, although it was well understood that other changes in the old articles of confederation, vastly more important, were contemplated. Under these circumstances it would seem strange that the work of the convention, the constitution of the United States, should still leave it a debatable question to what extent it was designed to limit the taxing power of the states, and how far the taxing power of the two governments was designed to be concurrent over the same subject, and where it was intended to be exclusive in the one or the other. The result of their deliberations and actions is before us. The convention undoubtedly supposed they had accomplished every purpose deemed important or desirable on this subject by two provisions inserted in the constitution. One is a prohibition to the states from laying any imposts or duties upon imports or exports without the consent of Congress. The other provision invested Congress with the power to “ regulate commerce with foreign nations, and among the several states.” Beyond this the convention did not deem it necessary to go to secure the objects in view.
*485It is now contended and decided that the states can not levy a tax upon merchandise brought from foreign countries, or from other states, after it has become the property of their citizens, and after it has paid duties (if any were due) to the federal government, and it has passed from the hands of the importer and been distributed among retailers, or the original packages in which it was imported have been broken up, unless the same.tax is levied on similar productions or similar articles of manufacture raised or made within the state where the tax is levied. Where is the provision of the constitution which imposes this restriction ? The proposition is, that the power to regulate commerce with foreign nations and among the several states excludes all exercise of such power by the states, whether the ground be occupied by federal legislation or not. Be it so. This is not my opinion, nor was it the opinion of a 'majority of the supreme court of the United States, who decided the License Cases reported in 5 Howard. C. J. Taney, with Judges Nelson, Woodbury, Daniel and Catron, were of opinion that every object proposed to bo accomplished, and which ought to be accomplished consistent with a duo maintenance of state sovereignty and state safety, was obtained by construing this provision to yield a supremacy to federal legislation, and not to exclude necessarily all state legislation on the subject. The Chief Justice did not hesitate to express his alarm at the consequences of any other construction, and avowed his belief that it would “ seriously impair the powers of taxation which have been heretofore exercised by the states.” But let it be conceded that the power is exclusive. The question still presents itself after this concession is made, whether a tax upon foreign merchandise in the hands of retail dealers within this state, or of wholesale dealers (after the package is broken), is a regulation of commerce with foreign nations, or between the states, within the meaning of this provision of the federal constitution. Such a tax, it is admitted, imposes a burden on commerce to some extent; but because it imposes directly a burden on commerce, is it therefore a regulation *486of commerce with foreign nations or between the states ? If the answer to this question is affirmative, and such I-understand is the conclusion to which a majority of the court has arrived, let us see to what results it leads. I can follow it to no other conclusion than that the legislature have no power to tax merchants or merchandise at all. How will you tax merchants without imposing a burden upon commerce ? What law can be devised to effect such a purpose as this ? Merchants are the persons by whom all the commerce of the country is conducted. They are the agents who exchange the surplus productions and manufactures of this state for those of foreign nations and sister states. Eveiy tax upon the merchant, however small, whether exacted in the shape of a license or imposed in the form of an ad valorem duty, is a burden upon commerce; and if the legislature of Missouri have no power to impose a burden on commerce, they have no power to tax merchants or their effects.
A power to tax, said Judge Marshall, is a power to destroy. If taxes, then, upon merchandise or merchants are regulations of commerce within the meaning of the clause of the constitution referred to, the power to levy them carries with it a power to destroy commerce with foreign countries and between the states, and is totally prohibited to the state governments, as much as the power to tax the branch of the United States Bank was prohibited to the state of Maryland in the case from which Judge Marshall’s sentiment has been quoted. But the proposition is, that the legislature may impose this burden upon commerce — may tax merchants and their importations from abroad, provided they will also levy a tax upon all similar articles manufactured in this state; or, if the tax is extended (as it formerly was) to foreign produce, it will be valid, provided similar productions of this state are also taxed to the same amount. In other words, if a tax is laid upon articles of foreign growth or manufacture in the hands of a retail merchant of Missouri, the same rate of taxation must be imposed upon similar articles of domes*487tic production or manufacture in the hands of the same merchant.
How the burden on commerce is to be diminished by this extended taxation, I do not see; but I do see the enormous injustice of the proposition. The effect is to throw the main burden of taxation upon -the home manufacturer and agriculturist. As the law now stands, the farmer pays taxes upon his capital, upon his lands, his slaves, his cattle, horses, &c. The manufacturer does the same; he pays the taxes which this law now imposes upon all his property, all his manufacturing capital, whether houses, machineiy, tools, &c. The proceeds of this capital, in the case of the farmer, are his hemp, tobacco, wheat, corn, &c. They are the income which, under the present law, is not taxed. The proceeds or income of the capital of the manufacturer are the manufactured articles now proposed to be'taxed. True, the tax is to be levied in the shape of a merchant’s license, and is to-he paid by the merchant first. But upon whom does the burden fall at last ? Will the commission merchant take the tobacco, wheat and hemp of the farmer, pay the tax on it which is levied on foreign hemp, wheat and tobacco, and not charge it to the farmer along with his commission when a settlement is made ? Will not the merchant who sells by retail or wholesale the rope, glass, hardware, stoves, &c., consigned to him by the manufacturer, or sold to him as articles of merchandise,- deduct from his sales and commission, or from the price he has absolutely given, the amount of the tax which he knows must be paid by him upon these articles as merchandise ? Of course, the tax must come out of the farmer or manufacturer. The farmer then must become his own merchant, must take his tobacco to Liverpool, his hemp to Kentucky or New York, his wheat to whatever foreign market promises the best price, or he must submit to a tax upon his income in addition to that he now pays on his capital. The manufacturer must take his bale rope and bagging to a cotton-growing region; his glass, nails, castings, &c., to whatever market abroad may be the best, or pay a *488tax through the merchant upon his entire income also. The merchant pays no such tax. His capital only is taxed and not his income. Nor is an income tax levied on any other industrial class of the community. It will be seen at once that if the merchant who acts as a broker to dispose of the tobacco, wheat and corn of the farmer, or the bale-rope, nails, or white lead of the manufacturer, or who purchases these productions and manufactures as merchandise with a view to resale, is compelled to pay a tax on their value equal to the tax levied on similar articles imported from abroad, the weight of this taxation falls on the farmer and manufacturer and not on the merchant, and the farmer and manufacturer have to bear a burden of taxation not imposed upon any other pursuits. In short, their property is taxed twice, substantially; first, in the shape of capital, and secondly, in the proceeds or income of that capital. This is what I call discrimination — discrimination against the farmer and domestic manufacturer, and in favor of the productions and manufactures of other countries. As the law now stands, there is no discrimination of which any class of our citizens has a right to complain. The merchant does not pay taxes upon the manufactures of this state, simply because they have already borne their proper burden of taxation in the hands of the manufacturer.
But let us see how this discrimination or exemption of domestic productions affects commerce with foreign countries, or between the states. That it may indirectly affect such commerce is admitted, and so must every tax upon the merchant and upon his merchandise. But this docs not make it unconstitutional, or we must cut off from the states all power of taxing articles imported from abroad. The primary object or effect of the law must be to regulate commerce, and not the mere incidental or remote effect which no revenue law can entirely avoid. It must reach the interests mainly of foreign countries or sister states, and not be confined in its operations to the interests and prosperity and internal commerce of this state. How does the law now in *489question concern any government or people under the sun except those of Missouri ? Leaving out of view the fact that Missouri productions are hot taxed, and that thus far there is exemption or discrimination, all the world is put upon a footing so far as their intercourse with us is concerned. There is no discrimination in the amount of taxation, and none in reference to the place of production. Whether brought from the West Indies or East Indies, from Charleston or Boston, the tax is the same. No tax is levied on sugar made in Cuba which is not levied on sugar made in Louisiana. The law is wholly infra territorial, affecting the cit izens of Missouri alone — reaching the public coffers of Missouri alone — touching the internal commerce of this state alone, excepting always that incidental and necessary tendency which every tax for revenue levied upon merchants has upon all commerce, both foreign and domestic. To tax a steamboat or the owner of a steamboat for the value of his boat is a tax upon commerce remotely, incidentally and necessarily. Can not the state of Missouri tax steamboats owned by her citizens, because they are vehicles of commerce and because such a tax necessarily imposes an indirect or even direct burden upon commerce ? Yet, if the power to regulate commerce is totally denied to the states and exclusively vested in Congress, and every tax which reaches the interests of commerce and has a tendency to diminish or restrict it, either with foreign nations or between the states, is such a regulation of commerce as has been confided exclusively to the federal government, steamboats can not be taxed, merchants can not be taxed, and the limits of state taxation are exceedingly narrow. It is difficult to see how the states can tax any business whose range extends beyond her territorial limits, or any pursuit which is based upon an exchange of foreign for domestic productions.
Previous to the formation of the federal constitution and whilst the states were bound together by the articles of confederation, each state had its own custom-house and its own tariff. There was no uniformity, and some of the states, as *490Mr. Madison informs ns, taxed imports from others. Connecticut taxed imports from Massachusetts. Now, no state can tax imports or exports; no state has custom-houses or tariffs.
If the present revenue law is a tax upon imports or exports, I admit it is unconstitutional. That part of the act which taxes goods in the hands of the importer before the original package is broken, has already been passed upon, and, in conformity to the decision in the case of Brown v. Maryland, has been declared void. My opinion about the case of Brown v. Maryland has already been fully stated in the case of Crow and others v. The State, decided several years ago ; and I shall not here repeat what was said there. Although the reasoning and judgment in that case is not in conformity to my views, yet I cheerfully submitted to abide by it, and to leave it to some future review of the same tribunal which decided it to be reaffirmed or overruled. I observe that the supreme court of Georgia have, in a recent case, totally repudiated the doctrine of Brown v. Maryland; and in 1825, before the case of Brown v. Maryland was decided, the supreme court of Pennsalvania, with Tilgliman as chief justice, came to a conclusion, on the same question, just the opposite to that reached by the supreme court of the United States. (Riddle v. The Commonwealth, 13 S. & R.-.) The case of Raguet v. Wade, 4 Ohio, 407, is also hard to be reconciled with the case of Brown v. Maryland.
But let the case of Brown v. Maryland stand. That decision does not touch the question of discrimination. It admits the power of a state to tax imports, just as she has power to tax any other property of her citizens, after they cease to be under the protection which their character as imports gives them. And when is this point reached ? After the goods have left the hands of the importer, or been broken up in their original package. When this point has been passed the case of Brown v. Maryland concedes the full power of state taxation, and this concession determines the present question. If importations from abroad, so soon as they have-*491passed from tlie custom-house and been broken up in the possession of the importing merchant, or passed out of his hands into the possession of the retail dealer, are upon a footing with all other property owned by other citizens within the state, then they may be taxed or be exempted from taxartion as the state chooses; for, in relation to all property which does not come from abroad, it is admitted that the state may discriminate. It is admitted that the state may tax slaves and omit to tax land; that the state may tax four year old cattle and exempt all under that age from taxation; that horses may be taxed and mules be left untaxed. How then can property brought from other states or from foreign countries occupy the same position with property raised or made here in reference to the taxing power of the state, unless the power of discrimination, selection or exemption exists in both cases ? The thing is impossible. Either this imported property from abroad does not occupy the same ground with property which always was here, although it has paid, duties and passed the point which Judge Marshall fixed as the terminus of the federal power, or it does. The supreme court, in Brown v. Maryland, declared that it did occupy the same ground ; and if that be so, then the power of state taxation is not affected by any provision of the federal constitution, but depends altogether on the state constitution. By the' latter instrument it is admitted that the power of discrimination is not taken away. Therefore the power of discrimination exists as well in reference to property which comes from abroad as it does in reference to that which is of domestic origin. But if importations from abroad do not cease to be imports within the meaning of the constitution of the United States after they have paid duties, and after they have passed into the hands of retailers, and after they have, as Judge Marshall expressed it, been mixed up with the other property of the state, when do they lose this character ? Do they retain it always ? Judge Marshall, it is true, said an import was a thing imported; but he saw there was a point when things imported fell as completely within the tax*492ing power of the states as though they had never possessed the character of imports. He admitted his general reasoning was subject to limitations ; that it would be a fatal blow upon the states to deprive them of the taxing power over property which came from abroad, merely because it was from abroad. Hence he assigned a limit, and that limit has been passed in this case, and the property, although imported, has ceased to be an import, but occupies precisely the same ground with any other property belonging to citizens of Missouri, and found within her territorial limits.
If a farmer of Missouri imports thorough-bred cattle from Kentucky, do not these cattle fall within the taxing power of this state just as well as the cattle owned by the same farmer raised here ? If so, have not the legislature the same power to tax or to omit to tax them, or the same power to tax them and omit to tax the home-bred cattle, which they are conceded to have in reference to every other species of property liable to taxation ? How is the case altered by supposing that the cattle are imported by a trader, whom the legislature may, if they chose, call a merchant ? May they not require a license ? And is not the license an indirect tax upon Kentucky raised cattle ? And does it not affect commerce in cattle with that state ? Is not a tax upon horses and an exemption of mules from taxation a discrimination in favor of mules ? Yet the legislature may pass such laws. With their expediency I have no concern. It is the question of power of which alono I speak. What I maintain is, that the property of the merchant, after it ceases to be protected as imports, is just in the same situation in reference to state taxation in which all the other property of the citizens of the state is ; and this power is important to the preservation of the peace, welfare, health and morals of the citizens of the states, and may be safely entrusted to their legislatures. The constitution of the United States was based upon the supposition that the same amount of intelligence, discretion and patriotism was to be expected in the state government that was likely to be found in the federal government; that lira-*493Rations or checks were essential to each; but that abuses of power under either must necessarily be left to those motives of self-preservation, patriotism, and a regard for the public welfare, which would be likely to have as much practical operation among the constituents of the one as of the other.
It will be seen that the opinion, which maintains the concurrence of the power over commerce in the federal and state governments, affords an ample cheek against abuses of the power by the latter. The supremacy of the laws of Congress, when such laws are deemed necessary to abolish or prevent injudicious state legislation interfering with commerce with foreign nations or between the states, is admitted. In the present case the law is denied to be a regulation of commerce, and if it was admitted to have that effect, it would not therefore be invalid.
It may happen that property will be introduced into this state which is believed to be destructive of the health or morals of our citizens, or dangerous to the stability of our institutions. Have the legislature no power to prevent or to discourage the diffusion of such property by an increased rate of taxation, by licenses at high prices, or by such penalties upon its sale as would amount to a total prohibition of its circulation ? Yet, if the states have this power, its exercise will, to some extent, impair commerce, and, where the tax., amounts to prohibition, will destroy it. The concession of such a power can not be made to consist with a denial of the power to discriminate by calling it a police power. The motive which prompts the passage of a law can not make it constitutional. The motive may be excellent, but if a state lacks the power, the law is invalid. The motive may be bad, yet, if the state possesses the power, the law is valid. It is a question of power. The word police has no magic in it; it means simply the internal government of a state. A revenue law is a police law, a» much so as a law to promote health or protect public morals. Neither the one or the other is valid, if the state has no power to pass it; and no step in advance is made by determining the law to be beneficial to health or *494morals. That is a question of expediency of which the legislature are to judge.
In a word, it will be understood that, in my humble opinion, the law now under consideration is not a regulation of commerce with foreign nations, or between the states ; that it was not so intended, and has no such results; that, to make it such, every law, which imposes a burden on commerce or has a tendency to diminish foreign importations, must be held a regulation of commerce within the meaning of the federal constitution; that this doctrine annuls all taxation whatever upon merchants; that merchandise ceases to be imports, within the meaning of the prohibition in the constitution, when the duty to the federal government has been paid and the package is broken up in the hands of the importer or has passed to the retail merchant; that no other limit has been fixed by judicial decision; that if the merchandise which is thus mingled with the mass of other property is not liable to taxation because an import, then no tax can ever be levied upon importations; that there is no provision in the federal or state constitutions which prohibits such discrimination or exemption as is found in this law, and no decision of the supreme court of the United States or of any state court which has so declared it. I believe also that such laws are to be found in the statute books of many states, perhaps all; and certainly it has always been the law here. I therefore conclude with the words of Judge Woodbury from the bench of the supreme court of the United States, “ it is perfectly competent for the states to assess a higher tax or excise by way of license or direct assessment on articles of foreign rather than domestic growth belonging to her citizens ; and it has ever been done, however it may discourage the use of the former or lessen the revenue which might otherwise be derived from them by the federal government, or tend to reduce imports as well as to restrict the sale of .them.”