ERROR to the Supreme Court of Nevada. In 1865, the legislature of Nevada enacted that 'there shall be levied and collected a capitation tax of one dollar upon every person leaving the State by any railroad, stage coach, or other vehicle engaged or employed in the business of transporting passengers for hire,' and that the proprietors, owners, and corporations so engaged should pay the said tax of one dollar for each and every person so conveyed or transported from the State. For the purpose of collecting the tax, another section required from persons engaged in such business, or their agents, a report every month, under oath, of the number of passengers so transported, and the payment of the tax to the sheriff or other proper officer. With the statute in existence, Crandall, who was the agent of a stage company engaged in carrying passengers through the State of Nevada, was arrested for refusing to report the number of passengers that had been carried by the coaches of his company, and for refusing to pay the tax of one dollar imposed on each passenger by the law of that State. He pleaded that the law of the State under which he was prosecuted was void, because it was in conflict with the Constitution of the United States; and his plea being overruled, the case came into the Supreme Court of the State. The court–considering that the tax laid was not an impost on 'exports,' nor an interference with the power of Congress 'to regulate commerce among the several States'–decided against the right thus set up under the Federal Constitution. Its judgment was now here for review.
The opinion of the court was delivered by: Mr. Justice Miller delivered the opinion of the court.
No counsel appeared for the plaintiff in error, Crandall, nor was any brief filed in his behalf.
Mr. P. Phillips, who filed a brief for Mr. T. J. D. Fuller, for the State of Nevada:
The law in question is not in conflict with that clause of the Constitution of the United States, which provides that 'no State shall, without the consent of Congress, lay any imposts or duties on imports or exports,' &c. Persons carried out of a State are not 'exports' within the meaning of this clause. An export is a 'thing exported,' not a person.*fn1
Nor in conflict with the provision that 'Congress shall have power to regulate commerce among the several States,' &c. The grant of power here given to Congress has never yet been exercised by it. It has enacted no statute upon the subject of inter-state travel. And while thus dormant and not exercised by Congress, it does not deprive the several States of the power to regulate commerce among themselves, a power which confessedly belonged to them before the adoption of the Constitution of the United States. In all decided cases where analogous laws of the several States have been held unconstitutional, it has been because of their alleged conflict with laws actually enacted by Congress under the power given that body by the Constitution 'to regulate commerce with foreign nations and with Indian tribes.' In such case of course the State law must give way.*fn2
In addition the law in question is not intended as a regulation of commerce among the States, but as a tax for the support of the State government. A law passed thus diverso intuitu does not become a regulation of commerce merely because in its operation it may bear indirectly upon commerce.*fn3
The power of taxation, like the police power, is indispensable to the existence of a State government, and it has never been pretended that it is impaired by any clause of the Federal Constitution, except so far and in such respects as that instrument expressly prohibits it. To take away that power by inference would be to open the way for entire destruction of State government.*fn4
Finally. The tax in question is not a poll-tax, nor can it be made so by being described by the law as a 'capitation tax.' It is not levied on, nor paid by the passenger himself; but it is paid by the common carrier, at the rate of so much for each passenger carried by him. It is strictly a tax on his business, graduated by the amount of such business, as are license taxes, which often are made to vary pro rata with the amount of business done by the person taking the license. Suppose that the State, after examining the affairs of this particular stage company, had found that it carried a thousand passengers per year, and without any reference to what they had observed, laid a tax of a thousand dollars a year on all stage companies engaged in business like that of Crandall. Would that tax be unconstitutional? The State makes roads. It keeps them in repair. It must in some way be paid in order to be able to do all this. And what difference does it make whether it be paid by a tax of one dollar on each passenger, or by the same sum collected at a toll-gate, or by a gross sum for a license?
Nor does the tax become a poll-tax by falling untimately upon the passengers carried, any more than does the tax upon liquors become a poll-tax because ultimately paid by him who drinks the liquor. It remains a tax upon the business, whoever pays it at last.
The question for the first time presented to the court by this record is one of importance. The proposition to be considered is the right of a State to levy a tax upon persons residing in the State who may wish to get out of it, and upon persons not residing in it who may have occasion to pass through it.
It is to be regretted that such a question should be submitted to our consideration, with neither brief nor argument on the part of plaintiff in error. But our regret is diminished by the reflection, that the principles which must govern its determination have been the subject of much consideration in cases heretofore decided by this court.
It is claimed by counsel for the State that the tax thus levied is not a tax upon the passenger, but upon the business of the carrier who transports him.
If the act were much more skilfully drawn to sustain this hypothesis than it is, we should be very reluctant to admit that any form of words, which had the effect to compel every person travelling through the country by the common and usual modes of public conveyance to pay a specific sum to the State, was not a tax upon the right thus exercised. The statute before us is not, however, embarrassed by any nice difficulties of this character. The language which we have just quoted is, that there shall be levied and collected a capitation tax upon every person leaving the State by any railroad or stage coach; and the remaining provisions of the act, which refer to this tax, only provide a mode of collecting it. The officers and agents of the railroad companies, and the proprietors of the stage coaches, are made responsible for this, and so become the collectors of the tax.
We shall have occasion to refer hereafter somewhat in detail, to the opinions of the judges of this court in The Passenger Cases,*fn5
in which there were wide differences on several points involved in the case before us. In the case from New York then under consideration, the statute provided that the health commissioner should be entitled to demand and receive from the master of every vessel that should arrive in the port of New York, from a foreign port, one dollar and fifty cents for every cabin passenger, and one dollar for each steerage passenger, and from each coasting vessel, twenty-five cents for every person on board. That statute does not use language so strong as the Nevada statute, indicative of a personal tax on the passenger, but merely taxes the master of the vessel according to the number of his passengers; but the court held it to be a tax upon the passenger, and that the master was the agent of the State for its collection. Chief Justice Taney, while he differed from the majority of the court, and held the law to be valid, said of the tax levied by the analogous statute of Massachusetts, that 'its payment is the condition upon which the State permits the alien passenger to come on shore and mingle with its citizens, and to reside among them. It is demanded of the captain, and not from every ...