Chalker v. Birmingham & Northwestern Railway Co.

delivered the opinion of the court.

The point for determination is the liability of J. W. Wright, Jr., a citizen and resident, of Alabama with his chief office therein, who engaged in the business of constructing a railroad in Tennessee, for the tax prescribed by § 4 of “An Act to provide revenue for the State of Tennessee and the counties and municipalities thereof,” approved May 1, 1909 (Acts of Tenn., 1909, c. 479, pp. 1726, 1727, 1735) which provides:

“Sec. 4. Be it further enacted, That each vocation, occupation, and business hereinafter named in this section is hereby declared to be a privilege, and the fate of taxation on such privilege shall be as hereinafter fixed, which privilege tax shall be paid to the County Court Clerk as provided by law for the collection of revenue. .

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“Each foreign construction company, with its chief -office outside of this State, operating or doing business. *526 in this State, directly or by agent, or by any subletting contract, each, per annum, in each county . . . $100.00

“Each domestic construction company and each foreign construction company,-having its chief office in this State, doing business in this State, each, per annum, in each county .................'. . $25.00..

“The above tax shall be paid by persons, firms, or' corporations engaged in the business of constructing bridges, waterworks, railroads, street-paving construction work, or other structures of a public, nature.”

Replying, to the claim that the statute in effect discriminates against citizens of other States, the Supreme Court of Tennessee, 138 Tennessee, 145, 152, 153, said: “The determining feature in the legislation quoted is the having' of one’s chief office in this State. Any citizen of this State, as well as any. citizen of a foreign State, who has Ms chief office out of the State, must ipay the $100 tax; so of.any domestic corporation, as well as foreign corporation, having its -cMef-office out of the State. Any foreign (Corporation or citizen of' another State, or firm, as well as^ domestic corporations, citizens of tMs State, and firms of this State having its or their chief office in this State, are all alike entitled to carry on a railroad construction business here on the payment of $25. There is no discrimination at all.”

With tMs conclusion vve are unable to agree. Accepting the construction placed upon’it by the Supreme Court, we think the quoted section does discriminate between citizens of Tennessee and those of other States by imposing a Mgher charge on the latter than it does on the former, contrary to § 2, Art. IV of the Federal Constitution— “The citizens of each State shall be entitled to all privileges and immumties of citizens in the several States.”

The power of a State to make reasonable and natural classifications for purposes of taxation is clear, and not questioned; but neither under form Of classification nor *527 otherwise can any State enforce taxing laws which in their practical operation materially abridge or impair the equality of commercial privileges secured hy the Federal Constitution to citizens of the several States.

“Excise taxes, it is everywhere conceded, may be imposed by . the States, if not in any sense discriminating; but it should not be forgotten that the people of the several States live under one common Constitution,, which was ordained to establish justice, and which,' with the laws of Congress, and the treaties made by the proper authority, is the supreme law of the land; arid that that supreme law requires equality of burden, and forbids discrimination' in State taxation when the power is applied to. the citizens of the other States. Inequality of burden, a’s well as the want of uniformity in commercial',regulations, was one of the grievances of the citizens under the Confederation and thé new Constitution was adopted, among other things, to remedy those defects in the prior system.” Ward v. Maryland, 12 Wall. 418, 431; Guy v. Baltimore, 100 U. S. 434, 439; Blake v. McClung, 172 U. S. 239, 254; Darnell & Son Co. v. Memphis, 208 U. S. 113, 121.

As the chief office of an individual is commonly in the State of which he is a citizen, Tennessee citizens engaged in constructing railroads in that State will ordinarily have their chief offices therein, while citizens of other States so engaged will not,. Practically, therefore, the statute under consideration would produce discrimination against citizens of other States by imposing higher charges against them than citizens of Tennessee are required, to pay. /We can find no adequate basis for taxing individuals according to the location of their chief offices — the classification, we. think, is arbitrary and unreasonable. Under the Federal Constitution a citizen of one State is guaran-, teed the right to enjoy in all other States equality of commercial privileges with their citizens; but he cannot have his chief office in ev.ery one of them. .

*528 It is insisted that no tender of any sum for license tax was made in time, and therefore plaintiffs in error cannot question the validity of the enactment because of discrimination. But the Supreme Court expressly declared that the statute fixed the liability of Wright at one hundred dollars. A tender of less would have availed nothing and it was therefore unnecessary.

The judgment of the. court below is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.