5 Legal Op. 1 (1873)

handle is hein.journals/legop5 and id is 1 raw text is: iolGL OPIXIoN
Vol. V.   HARRISBURG, PA., MAY 10, 1873.  No. 1.

Acts ofAssembly-1878
AN ACT to increase the compensation of
county commissioners, witnesses, super-
visors, township auditors and tile sheriff,
for boarding prisoners in the county of
Clarion.
SECTION 1. Be it enacted by the Sen-
ate and House of Representatives of the
Commonwealth of Pennsylvania in general
assembly met, and it is hereby enacted by
the authority of the samo, That from and
after the first day of January, A. D, 1873,
the compensation of the county commis-
sioners of Clarion county shall be. three
dollars for each day necessarily spent in
discharging the duties of their office, and
the compensation of the township auditors
in said county shall be two dollars for
each day necessarily spent in the discharge
of the duties of their office.
SEC. 2. That the court of quarter ses-,
sions of the peace, in and for the county
of Clarion, shall have the power to increase
or decrease from time to time, tile compen-
sation of the sheriff of said county for
boarding prisoners in the county jail:
Provided, That said compensation shall
not exceed sixty cents per day for each
prisoner.
SEC. 3. That hereafter the fees of wit.
nesses attending all courts of record in
Clarion county Lhall bc one dollar per
day.
SEC. 4, That the compensation of su-
pervisors of roads shall be two dollars for
each day necessarily spent in the discharge
of his or their official duties in said Clarion
county.
Approved March 28, 1873.
U. S. Supreme Court.
THE PHILADELPHIA AND READ-
ING R. R. CO., Plaintiffs in Error, v.
THE COMMONWEALTH OF PENN-
SYLVANIA.
Gross Receipt 2ax Cas:s.
A statute of Pennsylvania that lc es a tax of
three-fourths of one per cent. on the gross re-
ceipts of all railroad companies, is not in con-
flict with the constihtion of the United States,
because it taxes the gross receipts, part of which
may be derived from goods transferable beyond
the State.
States have authority to tax the estates, real -id
personual, of all their corporations, including
carrying companies preciely as they ma y tax
siilar property belonging to natoral persons
and to the sime extent.
All gross receolts of railroad or canal companies,
after they have reachd the treasury of the car-
rier, though they may have i en derived in pait
from transpol uition of freight between States,
become subject to legitinute taxation, as also
do the net earnings of any corporation.
Miller, Field and Hunt, JJ., dissent. Legal Int'r.
In Error to the Supreme Court of the
Commonwealth of Pennsylvania.
Opinion by Mr. Justice STaoNo. March
10, 1873.

By an act of the Legislature of Pennsyl-
vania, passed on the 22d day of February,
1866, entitled An Act to amend the rev-
enue laws of the commonwealth, a tax
was imposed upon the gross receipts of cer-
tain companies. The second section is as
follows: In addition to the taxes now
provided by law, every railroad, canal,
and transportation company incorporated
under the laws of this commonwealth, and
not liable to the tax upon income under ex-
isting laws, shall pay to the commonwealth
a tax of three-fourths of one per centum
upon the gross receipts of said company;
the said tax shall be paid semi-annually
upon the first days of July and January,
commencing oi the first day of July, 1866;
and for the purpose of ascertaining the
amount of the same, it shall be the duty
of the treasurer or other proper officer of
said company, to transmit to the Auditor
General a statement, under oath or affir-
mation, of the amount of gross receipts of
the said company during the preceding six
months; and if such company shall refuse,
or fail, for a period of thirty days after
such taxes become due, to make said re-
turn, or to pay the same, the amount
thereof, with an addition of ten per cen-
tum thereto, shall be collected for the use
of the commonwealth, as other taxes are
recoverable by law from said compa-
nies.
Under this law a tax was levied upon
the plaintiffs in error of three-quarters of
one per centuim of the gross receipts of the
company during the six months ending
December 31, 1867, and the question now
is, whether the act imposing it is in con-
flict with the third clause of the eighth see-
tion, article first, of the constitution of the
United States, which confers upon con-
gress power to regulate commerce with
foreign nations, and among the several
States, and with the Indian tribes; or
whether it is in conflict with the second
clause of the tenth section of the same ar-
ticle, which prohibits the States, without
the consent of Congress, from laying any
imposts, or duties on imports, or exports,
except what may be absolutely necessary
for executing the inspection laws. It was
claimed in the State courts that the act is
unconstitutional so far as it taxes that por-
tion of the gross receipts of companies
which are derived from transportation
from the State to another State, or into
the State from another, and the Supreme
Court of the State having decided ad-
versely to the claim, the case has been
brought here for review.
HN e have recently decided[ in another
case between these parties that freight
transported from State to State is not sub-
ject to State taxation, because thus trans-
ported. 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. If then a tax
upon the gross receipts of a railroad, or a
canal company, derived in part from the
carriage of goods from one State to
another is to be regarded as a tax upon
inter-State transportation, the question be-
fore us is already decided. The answer
which must be given to it depends upon
the prior question whether a tax upon
gross receipts of a transportation company
is a tax upon commerce, so far as that
commerce consists in moving goods or pas-
sengers across State lines. No doubt every
tax upon personal property, or upon occu-
pations, business, or franchises, affects
more or less the subjects, and the opera-
tions of commerce. Yet it is not every-
thing that affects commerce that amounts
to a regulation of it, within the meaning
of the Constitution. We think it may
safely be asserted that the States have au-
thority to tax the estate, real and per-
sonal, of all their corporations, including
carrying companies, precisely as they may
tax similar property when belonging to
natural persons, and to the same extent.
We think also that luch taxation may be
laid upon a valuation, or may bean excise,
and that in exacting an excise tax from
their corporations, the States are not ob-
liged to impose a fixed sum upon the fran-
chises or upon the value of them, but they
may demand a graduated contribution,
proportioned either to the value of the
privileges granted, or to the extent of their
exercise, or to the results of such exercise.
No mode of effecting this, and no forms of
expression which have not a meaning be-
yond this can be regarded as violating the
Constitution. A power to tax to this ex-
tent may be essential to the healthy exist-
ence of the State governments, and the
Federal Constitution ought not -to be so
construed as to impair, much less destroy,
anything that is necessary to their efficient
existence. But, on the other hand, the
rightful powers of the National govern-
ment must be defended against invasion
from any quarter, and if it be, as we have
seen, that a tax on goods and commodities
transported into a State, or out of it, or a
tax upon the owner of such. goods for the
right thus to transport them, is a regula-
tion of inter-State commerce, such as ii
within the province of Congress, it is, as
we have shown within the former case, in-
hibited by the Constitution.
Is, then, the tax imposed by the act of
February 23, 1866, a tax upon freight trans-
ported into, or out of, the State, or upon
the owner of freight, for the right of thus
tiansporting it? Certainly it is not di-
rectly. Very manifestly it is a tax upon
the railroad company, measured in amount
by the extent of its business, or the degree
to whitlh its franchise is exercised. That

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