DISNEY.-Reports of Select Cases in the Superior Court of Cincinnati. By WM. DISNEY. Vol. 2. Cincinnati: R. Clark & Co. Shp. $6.

FLANDERS. A Treatise on the Law of Fire Insurance. By HENRY FLANDERS. 1 Vol. 8vo. Philadelphia: Claxton, Remsen & Haffelfinger. $7.50. GIBSON.-Portrait of Hon. John B. Gibson, late Chief Justice of Pennsylvania, Lithographed. Philadelphia: Bourquin & Welsh. 50 cents.

GRIER.-Portrait of Hon. Robert C. Grier, late an Associate Justice of the Supreme Court of the United States, Lithographed. Philadelphia: Bourquin & Welsh. 50 cents.

ILLINOIS.-Digest of Reports. By C. H. WOODWARD and JOSEPH D. LONG. Vol. 2, containing cases in 32-50 Ills. Reports. CHICAGO: E. B. Myers. Shp. $7.50.

INDIANA. Reports of Cases in the Supreme Court. Vol. 32. By Jas. B. BLACK. Indianapolis: Journal Office. Shp. $5.50.

MARSHALL.-Portrait of Hon. John Marshall, Chief Justice of the United States. Philadelphia: Bourquin & Welsh. 50 cents.

MINNESOTA.-Reports of Cases in the Supreme Court. Vol. 15. By Wx. A. SPENCER. St. Paul: W. S. Combs. $5.

MISSISSIPPI.-Reports of Cases in the High Court of Errors and Appeals, By R. O. REYNOLDS. Vol. 42. New York: Banks & Bro. Shp. $7.50. NORTH CAROLINA.-Reports of Cases in the Supreme Court. Vol. 64. By S. F. PHILLIPS. Raleigh: Nichols & Gorman.

OHIO.-Reports of Cases in the Supreme Court. N. S. Vol. 19. By L. J. CRITCHFIELD. New York: Banks & Bro. Shp. $5.50.

PENNSYLVANIA.-Reports of Cases in the Supreme Court. By P. F. SMITH. Vol. 13, being Penna. State Reports vol. 63. Philadelphia: Kay & Bro. Shp. 4.50.

REDFIELD.-The Law of Wills. By ISAAC F. REDFIELD, LL.D. Parts 2 and 3, 2d Ed., revised and enlarged. Boston: Little, Brown & Co.

STERNE. Representative Government and Personal Representation. Based in part on Thomas Hare's treatise entitled "The Election of Representatives, Parliamentary and Municipal." By SIMON STERNE. 12mo., pp. 237. Philadelphia: J. B. Lippincott & Co. Cl. $1.75.

TANEY.-Reports of Cases determined in the Circuit Court of the United States, for the District of Maryland. By the Hon. Roger B. Taney, Chief Justice of the United States. By J. MASON CAMPBELL. Philadelphia: Kay & Bro. $7.50.

TENNESSEE.-Reports of Cases in the Supreme Court. By JOSEPH B. HEISKELL. Vol. 1. Nashville: Jones, Purvis & Co., Prs. Shp. $7.50.

UNITED STATES.-Compendium of Internal Revenue Laws, with Decisions, Rulings, Instructions and Forms. By J. B. F. DAVIDGE and J. G. KIMBALL. Washington, D. C.: W. H. & O. H. Morrison. Shp. $7.50.

UNITED STATES.-Patent Laws and Practice in Obtaining Patents in the United States and Foreign Countries, including Copyright and Trademark Laws. By C. S. WHITMAN. Washington: W. H. & O. H. Morrison. Shp. $5.

WRIGHT.-Annual Report of the Commissioner of Railroads and Telegraphs of the State of Ohio, for the year 1870. Vol. 2. containing the returns of Railroad and Telegraph companies, with tabulated statements, &c. BY GEORGE B. WRIGHT, Commissioner. 8vo. pp. 372. Columbus: Nevins & Myers, State Printers.

THE

AMERICAN LAW REGISTER.

JULY, 1871.

TAXATION OF INTER-STATE TRAVEL.

THE Baltimore and Ohio Railroad Company has refused to pay to the state of Maryland certain sums of money, claimed by that state, upon the ground that the statutes, imposing the obligation, are unconstitutional and void, in so far as they impose the duty of making the payment referred to in those acts.

The questions involved are of general interest, and we propose to state the grounds upon which the claim of the state of Maryland has been resisted.

The Acts of the General Assembly of Maryland, which have given rise to the controversy, are as follows:

"Be it enacted, &c. That the Baltimore and Ohio Railroad Company shall be entitled to charge and take as a compensation for the use of the railroad, which they are authorized to construct by this act, and for the conveyance of passengers and transportation of property thereon, at and not exceeding the following rates and amounts, to wit: for conveying any person, or transporting any parcel, or property, any distance whatever, twelve and a half cents; for conveying each person the whole distance between Baltimore and Washington, not exceeding one dollar and fifty cents, and four cents per mile for any part of the distance more than three miles." 1830, ch. 158, sect. 3.

"And be it enacted, That the Baltimore and Ohio Railroad Company shall be entitled to charge and take for conveying each person the whole distance between the cities of Baltimore and Washington, not exceeding two dollars and fifty cents, and in proportion for every shorter distance." 1832, ch. 175, sect. 7.

"And be it enacted, That the Baltimore and Ohio Railroad Company shall pay VOL. XIX.-27

(417)

to the treasurer of the Western Shore of Maryland, on the first Monday in January and July, in each and every year, for the use of the state, one-fifth of the whole amount which may be received for the transportation of passengers on said railroad by said company during the six months last preceding; and it shall be the duty of the president or chief officer of the Baltimore and Ohio Railroad Company, to exhibit, on oath or affirmation, to the General Assembly, on the first day of January, or as soon thereafter as the said Assembly shall convene, in each and every year, an account, showing the gross amount received by said company for the transportation of passengers on said road, and the state's proportion thereof; provided, that the charge for conveying each person the whole distance between the cities of Baltimore and Washington shall not be reduced below the maximum of two dollars and a half, hereinbefore established, unless by the consent of the General Assembly, or in the recess of that body, by the consent of the governor and council, which consent shall be effective until the end of the session of the General Assembly next ensuing; and provided also, that in no case shall the amount received by the state from the Baltimore and Ohio Railroad Company for the conveyance of each person the whole distance between the two cities, be less than twenty-five cents; and provided, that at any time and at all times, whenever an application is made to the legislature by said company to reduce said maximum price, it shall be lawful for the legislature to make such regulation of charge as it may deem necessary, not reducing the transportation of passengers to the company below one dollar and fifty cents for the whole distance, and rateably for any shorter distance." 1832, ch. 175, sec. 8.

"Be it enacted, That the Baltimore and Ohio Railroad Company shall be authorized to regulate the tolls to be paid for the transportation of passengers on the Washington Branch of the said road, in their discretion, not exceeding the maximum heretofore fixed by law, Provided, that one-fifth of the passage-money received from the said Branch Road be accounted for and paid into the state treasury, as now required by law." 1852, ch. 328.

The Act of 1830, above quoted, gave to the Baltimore and Ohio Railroad Company the right to charge one dollar and fifty cents for conveying each person the whole distance between Baltimore and Washington; but this power was operative and valid only within the state of Maryland.

The Act of 1832, above quoted, in terms conferred a new, specific, and unconditional power upon the Baltimore and Ohio Railroad Company to charge two dollars and fifty cents for conveying each person the whole distance between Baltimore and Washington, and in proportion for every shorter distance; but this provision, also, was only valid and operative within the state of Maryland.

The grant of power thus made, enabled the company to charge, within the limits of the state of Maryland, the proportionable rate, authorized by this section, although the sta'. had not the

power to extend this increased rate to passengers travelling from point to point in the District of Columbia.

The grant of power thus made was good and valid, within the state of Maryland, and remained to that extent effectual and operative, even if other parts of the act were invalid: State v. Davis, 7 Md. 151; Commonwealth v. Hitchings, 5 Gray 482; Mayor of Hagerstown v. Dechert, 32 Md. 384, BARTOL, C. J.

It did not operate as a valid grant of power within the District of Columbia, because the right to collect tolls is a prerogative franchise (Redfield on Railways, ed. 1867, p. 87), and no state can make such a grant of power operative beyond its territorial limits. The company, within the District of Columbia, had no power to make any other charge than that permitted by the Act of Congress of March 2d 1831.

We shall now endeavor to show that the requirement made by the Act of 1832, ch. 175, sect. 8, to pay the money therein referred to into the treasury of the state of Maryland is unconstitutional and void, because it imposes a tax upon every person travelling upon the Washington Branch Road of the defendant, which tax is required to be collected by the company, and to be by it paid into the treasury of the state.

Every citizen of the United States, being a citizen and resident of any particular state, has a right to travel into or through any other state without paying for such privilege of entry, or transit, any tax or charge to the state into or through which he shall so travel. For, being a citizen of another state, and subject to its jurisdiction and taxing power, and not being temporarily resident even of the state into which he may enter for a purpose of travel or transit only, he cannot constitutionally be taxed by such state.

Such a power of taxation was substantially denied to the confederated states in the original Articles of Confederation; for therein it was declared that "the people of each state shall have free ingress and egress to and from any other state;" and it cannot be supposed that the Constitution of the United States intended to leave a larger power in the states, over citizens of other states, than was conferred by the Articles of Confederation.

In the case of McCulloch v. Maryland, 4 Wheaton 316, the limit and subject of the taxing power of a state is thus set forth: "The sovereignty of a state extends to everything which

exists by its authority, or is introduced by its permission.' "If we measure the power of taxation residing in a state, by the extent of sovereignty which the people of a single state possess and can confer on its government, we have an intelligible standard applicable to every case to which the power may be applied."

A yet more emphatic expression of the true limit existing upon the taxing power of the state is stated in Howell v. State, 3 Gill 14, 23.

In the case of Hays v. The Pacific Mail Steamship Company, 17 Howard 598, 599, 600, it was decided that ships engaged in the business and commerce of the country, owned and taxed at their home ports, and temporarily at a port within the jurisdiction of another state, are not subject to the taxing power of such state, because "not properly abiding within its limits so as to become incorporated with the other personal property of the state." They are "there temporarily engaged in lawful trade and commerce, with their situs at the home port, where the vessels belonged, and where the owners were liable to be taxed for the capital invested."

If a steamship, touching for a few days or hours at a port within the limits of another state, is not subject to taxation by that state, because it is taxed elsewhere, and does not so abide. within its limits as to become incorporated with other personal property liable to taxation in such state, it would seem to be unanswerably true that a citizen of another state, entering temporarily into the state of Maryland, in pursuit of some lawful purpose, but having his residence in another state, and being of necessity bound to pay taxes in such state, can, under no circumstances, be subjected to a tax for the support of the government of Maryland, into which he has temporarily entered. Before such a person can be so taxed, he must in fact reside in Maryland, and become, by reason of his fixed residence, a part of the mass of that people resident in the state which is, from the nature of state government, bound to contribute to its support.

If he is not a citizen or resident of Maryland, but is a citizen of any other of the United States, then by reason of the relation of these states to each other, and because of the common interest of the citizens of each state in pursuits and localities permitted and open to citizens of all the states, and because of the common