EDYE V. ROBERTSON.We

251

was supposed to remove the objections held good against it in The Passenger Cases, the question of its constitutional validity was again brought before this court, when it was held void by the unanimous judgment of all its members. And this was upon the distinct ground that it was a regulation of commerce solely within the power of congress. "As already indicated," says the court, "the provision of the constitution of the United States, on which the principal reliance is placed, is that which gives to congress the right to regulate commerce with foreign nations." The court then, referring to the transportation of passengers from European ports to those of the United States, says: "It has become a part of our commerce with foreign nations, of vast interest to this country as well as to the immigrants who come among us, to find a welcome and a home within our borders." "Is the regulation of this great system a regulation of commerce? Can it be doubted that a law which prescribes the terms on which vessels shall engage in it is a law regulating this branch of commerce?" The court adds: “We are of opinion that this whole subject has been confided to congress by the constitution; that congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question which has long been matter of contest and complaint may be effectually and satisfactorily settlea." And for this reason the statute of New York was held void.

In the case of Commissioners of Immigration v. North German Lloyd, 92 U. S. 259, a similar statute of Louisiana was held void for the same reason. And in the case of Chy Lung v. Freeman,—decided at the same term,—92 U. S. 275, the statute of California, on the same subject, was also held void, because, in the language of the head-note to the report, "it invades the right of congress to regulate commerce with foreign nations."

I

In the case of People v. Compagnie Generale Transatlantique, 107 U. S. 59, S. C. 2 SUP. CT. REP. 87, where the state of New York, having again modified her statute, it was again held void, the court said: "It has been so repeatedly decided by this court that such a tax is a regulation of commerce with foreign nations, confided by the constitution to the exclusive control of congress," (referring to the cases just cited,) "that there is little to say beyond affirming the judgment of the circuit court, which was based on those decisions."

It cannot be said that these cases do not govern the present, though there was not then before us any act of congress whose validity was in question, for the decisions rest upon the ground that the state statutes were void only because congress, and not the states, was authorized by the constitution to pass them, and for the reason that congress could enact such laws, and for that reason alone, were the acts of the state held void. It was, therefore, of the essence of the decision which held the state statutes invalid, that a similar statute by congress would be valid. We are not disposed to reconsider those cases, or to resort to other reasons for holding that they were well decided. Nor do we feel that further argument in support of them is needed. But counsel for plaintiffs, assuming that congress, in the enactment of this law, is exercising the taxing power conferred by the first clause of section 8, art. 1, Const., and can derive no aid in support of its action from any other grant of power in that instrument, argues that all the restraints and qualifications found there in regard to any form of taxation are limitations upon the exercise of the power in this case. The clause is in the following language: "The congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and the general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States."

In this view it is objected that the tax is not levied to provide for the coin

mon defense and general welfare of the United States, and that it is not uniform throughout the United States. The uniformity here prescribed has reference to the various localities in which the tax is intended to operate. "It shall be uniform throughout the United States." Is the tax on tobacco void because in many of the states no tobacco is raised or manufactured? Is the tax on distilled spirits void because a few states pay three-fourths of the revenue arising from it? The tax is uniform when it operates with the same force and effect in every place where the subject of it is found. The tax in this case, which, as far as it can be called a tax, is an excise duty on the business of bringing passengers from foreign countries into this by ocean navigation, is uniform and operates precisely alike in every port of the United States where such passengers can be landed. It is said that the statute violates the rule of uniformity and the provision of the constitution that "no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another," because it does not apply to passengers arriving in this country by railroad or other inland mode of conveyance. But the law applies to all ports alike, and evidently gives no preference to one over another, but is uniform in its operation in all ports of the United States. It may be added that the evil to be remedied by this legislation has no existence on our inland borders, and immigration in that quarter needed no such regulation. Perfect uniformity and perfect equality of taxation, in all the aspects in which the human mind can view it, is a baseless dream, as this court has said more than once. State Railroad Tax Cases, 92 U. S. 612. Here there is substantial uniformity within the meaning and purpose of the constitution. If it were necessary to prove that the imposition of this contribution on owners of ships is made for the general welfare of the United States, it would not be difficult to show that it is so, and particularly that it is among the means which congress may deem necessary and proper for that purpose, and beyond this we are not permitted to inquire. But the true answer to all these objections is that the power exercised in this instance is not the taxing power. The burden imposed on the ship-owner by this statute is the mere incident of the regulation of commerce-of that branch of foreign commerce which is involved in immigration. The title of the act, "An act to regulate immigration," is well chosen. It describes, as well as any short sentence can describe it, the real purpose and effect of the statute. Its provisions, from beginning to end, relate to the subject of immigration, and they are aptly designed to mitigate the evils inherent in the business of bringing foreigners to this country, as those evils affect both the immigrant and the people among whom he is suddenly brought and left to his own resources.

It is true, not much is said about protecting the ship-owner. But he is the man who reaps the profit from the transaction, who has the means to protect himself, and knows well how to do it, and whose obligations in the premises need the aid of the statute for their enforcement. The sum demanded of him is not, therefore, strictly speaking, a tax or duty within the meaning of the constitution. The money thus raised, though paid into the treasury, is appropriated in advance to the uses of the statute, and does not go to the general support of the government. It constitutes a fund raised from those who are engaged in the transportation of these passengers, and who make profit out of it, for the temporary care of the passengers whom they bring among us, and for the protection of the citizens among whom they are landed. If this is an expedient regulation of commerce by congress, and the end to be attained is one falling within that power, the act is not void because, within a loose and more extended sense than was used in the constitution, it is called a tax. In the case of Veazie Bank v. Fenno, 8 Wall. 549, the enormous tax of 8 per cent. per annum on the circulation of state banks, which was designed, and did have the effect, to drive all such circulation out of existence, was upheld because it was a means properly adopted by congress to protect

the currency which it had created; namely, the legal-tender notes and the notes of the national banks. It was not subject, therefore, to the rules which would invalidate an ordinary tax pure and simple. So, also, in the case of Packet Co. v. Keokuk, 95 U. S. 80, the city of Keokuk having by ordinance imposed a wharfage fee or tax, for the use of a wharf owned by the city, the amount of which was regulated by the tonnage of the vessel, this was held not to be a tonnage tax within the meaning of the constitutional provision that "no state shall, without the consent of congress, lay any duty of tonnage. .” The reason of this is that, though it was a burden or tax in some sense, and measured by the tonnage of the vessel, it was but a charge for services rendered, or for conveniences furnished.by the city, and was not a tonnage tax within the meaning of the constitution. This principle was reaffirmed in the case of Same Plaintiff v. City of St. Louis, 100 U. S. 423.

We are clearly of opinion that, in the exercise of its power to regulate immigration, and in the very act of exercising that power, it was competent for congress to impose this contribution on the ship-owner engaged in that business. Another objection to the validity of this act of congress is that it violates provisions contained in numerous treaties of our government with friendly nations. And several of the articles of these treaties are annexed to the careful brief of counsel. We are not satisfied that this act of congress violates any of these treaties, on any just construction of them. Though laws similar to this have long been enforced by the state of New York in the great metropolis of foreign trade, where four-fifths of these passengers have been landed, no complaint has been made by any foreign nation to ours of the violation of treaty obligations by the enforcement of those laws. But we do not place the defense of the act of congress against this objection upon that suggestion. We are of opinion that, so far as the provisions in that act may be found to be in conflict with any treaty with a foreign nation, they must prevail in all the judicial courts of this country. We had supposed that the question here raised was set at rest in this court by the decision in the case of The Cherokee Tobacco, 11 Wall. 616. It is true, as suggested by counsel, that three judges of the court did not sit in the case, and two others dissented. But six judges took part in the decision, and the two who dissented placed that dissent upon the ground that congress did not intend that the tax on tobacco should extend to the Cherokee tribe.. They referred to the exist ence of the treaty which would be violated if the statute was so construed as persuasive against such a construction, but they nowhere intimated that, if the statute was correctly construed by the court, it was void because it conflicted with the treaty, which they would have done if they had held that view. On the point now in controversy it was therefore the opinion of all the judges who heard the case. See U. S. v. McBratney, 104 U. S. 621-623. The precise question involved here, namely, a supposed conflict between an act of congress imposing a customs duty, and a treaty with Russia on that subject, in force when the act was passed, came before the circuit court for the district of Massachusetts in 1855. It received the consideration of that eminent jurist, Mr. Justice CURTIS, of this court, who in a very learned opinion exhausted the sources of argument on the subject, holding that if there were such conflict the act of congress must prevail in a judicial forum. Taylor v. Morton, 2 Curt. C. C. 454. And Mr. Justice FIELD, in a very recent case in the Ninth circuit, that of In re Ah Lung, on a writ of habeas corpus, has delivered an opinion sustaining the same doctrine in reference to a statute regulating the immigration of Chinamen into this country. 18 Fed. Rep. 28. In the Clinton Bridge Case, Woolw. 156, the writer of this opinion expressed the same views as did Judge WOODRUFF, on full consideration, in Ropes v. Clinch, 8 Blatchf. 304, and Judge WALLACE, in the same circuit, in Bertram v. Robertson, 15 Fed. Rep. 212.

It is very difficult to understand how any different doctrine can be sus

254

C

SUPREME COURT REPORTER.

tained. A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties, which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens.The constitution of the United States places such provisions as these in the same category as other laws of congress by its declaration that "this constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land." A treaty, then, is a law of the land as an act of congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute. But even in this aspect of the case there is nothing in this law which makes it irrepealable or unchangeable. The constitution gives it no superiority over an act of congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity. A treaty is made by the president and the senate. Statutes are made by the president, the senate, and the house of representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difference in this regard, it would seem to be in favor of an act in which all three of the bodies participate. And such is, in fact, the case in a declaration of war, which must be made by congress, and which, when inade, usually suspends or destroys existing treaties between the nations thus at war. In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as congress may pass for its enforcement, modification, or repeal.

Other objections are made to this statute. Some of these relate, not to the power of congress to pass the act, but to the expediency or justice of the measure, of which congress, and not the courts, are the sole judges such as its unequal operation on persons not paupers or criminals, and its effect in compelling the ultimate payment of the sum demanded for each passenger by that passenger himself. Also, that the money is to be drawn from the treasury without an appropriation by congress. The act itself makes the appropriation, and even if this be not warranted by the constitution, it does not make void the demand for contribution, which may yet be appropriated by congress, if that be necessary, by another statute. It is enough to say that, congress having the power to pass a law regulating immigration as a part of the commerce of this country with foreign nations, we see nothing in the statute by which it has here exercised that power forbidden by any other part of the constitution.The judgment of the circuit court in all the cases is affirmed.

:

716

(113 U. S. 711)

SUPREME COURT REPORTER.

(5 Sup.Ct.)

UNITED STATES, Intervenor, v. INDIANAPOLIS & ST. L. R. Co.

(March 16, 1885.

INTERNAL REVenue Tax-RAILROAD BONDS-INTEREST COUPONS-ACT OF JULY 14, 1870. The law did not impose an internal revenue tax on interest coupons of the bonds of the Indianapolis & St. Louis Railroad Company, payable and paid on the first of January, 1872.

Appeal from the Circuit Court of the United States for the District of Indiana.

Sol. Gen. Phillips, for appellant. John T. Dye, for appellee.

HARLAN, J. This suit was brought to foreclose certain mortgages given to secure bonds issued by the Indianapolis & St. Louis Railroad Company. A final decree of foreclosure having been passed, the mortgaged property was sold, and the sale was confirmed by the court. The United States intervened

by petition, and asked that certain sums, alleged to be due to the government on account of taxes, be first paid out of the proceeds.

It appeared that certain interest coupons of the bonds of the company were payable and were paid on the first days of September and November, 1870, and that certain other interest coupons of the same company were payable on the first day of January, 1872, and were then paid out of its earnings made prior to that date and during the year 1871. The court below held: (1) That the act of July 14, 1870, (16 St. 269, c. 255, § 15,) did not impose an internal revenue tax on interest coupons of the bonds of the railroad company payable and paid during the last five months of that year; (2) that the law did not impose an internal revenue tax on interest coupons of such bonds payable and paid on the first day of January, 1872. The United States acquiesces in the judgment in respect to the first of these claims, but contends that the act of July 14, 1870, imposed a tax upon interest coupons that were paid out of the corporation earnings for 1871, although such payment was not due nor made until January 1, 1872. This question depends upon the construction of section 15 of the act of 1870, which provides "that there shall be levied and collected, for and during the year 1871, a tax of two and one-half per centum on the amount of all interest or coupons paid on bonds or other evidence of debt issued and payable in one or more years after date, by any of the corporations in this section hereinafter enumerated, [railroad corporations being among the number,] and on the amount of all dividends of earnings, income, or gains hereafter declared, * * * whenever and wherever the same shall be payable, * ** and on all undivided profits of any such corporation which have accrued and been earned and added to any surplus, contingent, or other fund," etc.

*

In construing this section in Railroad Co. v. U. S. 101 U. S. 550, the court said. "The interest in this case was neither payable nor paid in 1871, and, as the tax is not leviable or collectible until the interest is payable, we see no way in which the company can be charged on this account. The tax is not on the interest as it accrues, but when it is paid. No provision is made for a pro rata distribution of the burden over the time the interest is accumulating; and as the tax can only be levied for and during the year 1871, we think, if the interest is in good faith not payable in that year, the tax is not demandable, either in whole or in part. This decision covers the present case. The claim of the United States is not for a

but is distinctly for a tax on interest accruing on ax on dividends or gains,

the bonds of the railroad company, and which was not payable nor paid until after the year 1871, for and during which the act directed it to be levied and collected. We do not perceive that the liability of the corporation for tax on this interest, as such, is affected by the circumstance that the interest was paid out of the earnings made in the previous year.

Judgment affirmed.

3 P.H.CAS.-156