Page:Harvard Law Review Volume 32.djvu/942

9o6 HARVARD LAW REVIEW Stamp tax on notes issued by the United States bank was a tax on an instrumentality of the national government. The tax was discrim- inatory, in that it appHed only to banks not chartered by Maryland; but the court did not notice this point, and Marshall's opinion is applicable to a nondiscriminatory tax as well. On the other hand the Chief Justice conceded that Maryland might tax the real estate of the bank and the interest of Maryland citizens in the institution "in common with other property of the same description throughout the State." ^° A tax on the issuance of notes was regarded as a tax on the operations of a federal instrumentality; a tax on the real estate was thought to be something else. The only difference be- tween the two appears to be one of degree. One affects or may affect the operations of the bank more seriously than the other. Brown v. Maryland " also dealt with a discriminatory tax, and again this was not noted by the court. The law declared invalid required a license of importers of foreign articles and others selling the same by wholesale as a pre-requisite of authority to dispose of them. Retailers of foreign commodities were subject to a companion law. Mr. Justice Thompson dissented. He assumed that retailers would be held taxable and declared that there was no difference in effect between a tax on the wholesaler and one on the retailer. He assiuned also that "the law has no relation whatever to the goods intended for transportation to another State," but "applies purely to the internal trade of the State of Maryland." ^^ Accepting "> 4 Wheat. (U. S.) 316, 436 (1819). 11 Note 6, supra. ^ 12 Wheat. (U. S.) 419, 451 (1827). The correctness of this assumption may be doubted. Taney, who argued the case on behalf of the state, later expressed his ap- proval of the decision against his client on the express ground that the tax fell on ulti- mate consumers in other states. In his opinion in the License Cases, 5 How. (U. S.) 504, 575-76 (1847), he says: "The immense amoimt of foreign products used and con- sumed in this country are imported, landed, and offered for sale in a few commercial cities, and a very small portion of them are intended or expected to be used in the State in which they are imported. A great (perhaps the greater) part imported, in some of the cities, is not owned or brought in by citizens of the State, but by citizens of other States, or foreigners. And while they are in the hands of the importer for sale, in the form and shape in which they were introduced, and in which they are intended to be sold, they may be regarded as merely in transitu, and on their way to the distant cities, villages and country for which they are destined, and where they are expected to be used and consumed, and for the supply of which they were in truth imported. And a tax upon them while in this condition, for State purposes, whether by direct assessment, or indirectly, by requiring a license to sell, would hardly be more justifiable in principle than a transit duty ujwn the merchandise when passing through a State."