The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
64. An illustration of the constitutional use of the power of the State
over commerce is afforded by the tax, in Texas, on telegraph messages
sent from one place to another exclusively within the State, by private
parties, and not by the agents of the government of the United States.
The Texas law imposing this tax is not in conflict with the power of
Congress to regulate commerce,[166] and therefore was not repugnant
to the Constitution of the United States. The line of demarcation as
to exercise of the police power by a State is drawn “by the undoubted
right of the States of the Union to control their purely internal
affairs, in doing which they exercise powers not surrendered to the
general government.”[167]
Many State laws regulating its administration of internal affairs are
applications of its police power. The police power of the State is
of right, and is founded on “the sacred law of self-defense.”[168]
But this sacred law applies strictly to the domain of the State—to
its own jurisdiction. “It cannot invade the domain of the national
government.”[169] A State inspection law is a familiar example of the
exercise of its police power, but such a law, working obstruction of
interstate commerce, or any limitation of it, though such effect be
only incidental, is repugnant to the Constitution.[170] Such repugnancy
is effected by a State law levying a tax on tonnage, and is void.[171]
But a charge for mooring or landing at a wharf, is not a tax on
tonnage, but a charge for services rendered;[172] neither is the tax a
tonnage tax when the State imposes a tax on vessels (even if regularly
engaged in interstate commerce), the property of persons residing
within the jurisdiction of the State, the vessels themselves being
part of the mass of property within the State, being moored for long
periods at the wharf for repairs and being under the protection of the
State. The taxing power is a distinct and separate power from the power
to regulate commerce. The right of taxation in a State remains over
every subject where it existed before the adoption of the Constitution
with the exception only of prohibitions expressed or implied in the
Constitution.
The sovereign jurisdiction of the State is not limited; within
that jurisdiction it is free to tax. But the powers to tax and
to prohibit taxation are given in the Constitution by separate
clauses, and these powers are separate and distinct from the power
to regulate commerce. From this it follows that the enrolment of
a ship or vessel in interstate commerce does not exempt its owner
from taxation for his interest in it as property, upon a valuation
by State law, as in the case of other personal property.[173]
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