We have no hesitation, following the authority of Ward v. Maryland, 12 Wallace 418, in declaring the provision of the Act of 1868-'69, chap. 108, under which this tax was collected, unconstitutional.
The opinion of the Court in the case referred to is clear and explicit. We will not repeat the reasoning upon which it is founded, deeming it sufficient to say that the Act in question imposes a tax which discriminates against traders who are non-residents, and in doing so violates the Constitution of the United States, which ordains in Art. 4, sec. 2, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."
And further it would seem to be an infraction of Article 1, sec. 8, which ordains that "Congress shall have power to regulate commerce among the several States."
We have thought proper to say this much upon the question of law raised by the pleadings; but we are inclined to regard the present application as an abuse of the jurisdiction conferred upon the Court by our State Constitution, which ordains Art. 4, sec. 11, that "the Supreme Court shall *Page 49 have original jurisdiction to hear claims against the State, but its decisions shall be merely recommendatory; no process in the nature of an execution shall issue thereon; they shall be reported to the next session of the General Assembly for its action."
As our decisions are merely recommendatory, and are to be reported to the General Assembly, which is the only branch of the government that can afford relief, it is fair to presume that that body would give due consideration to a decision of the Supreme Court of the United States. Then why invoke our decision upon a point of law which has so recently been decided by the highest judicial authority in the land?
As a general rule taxes paid without protest will not be refunded. So far as we can see the plaintiffs paid this tax, which in view of the jurisdiction invoked, is so small as to fall within the maxim de minimisnon curat lex, without protest, and after the expiration of three years ask to have it refunded.
The matter is without legal embarrassment, and proper only for the consideration of the Legislature.
PER CURIAM. Complaint dismissed. *Page 50