PEOPLE OF THE STATE OF NEW YORK EX REL. EDWARD AND JOHN BURKE, LIMITED, Plff. in Err., v. JAMES L. WELLS, William S. Cogswell, George J. Gillespie, Samuel Strasbourger, and Rufus Scott, as Commissioners of Taxes and Assessments of the City of New York.

It is the contention of the plaintiff in error that the assessment upon $94,617.93, made upon office furniture, cash on hand and in bank, and the amount receivable upon bills and accounts payable, is void, except as to the item of office furniture, because of the protection afforded by the Constitution of the United States against taxes by states upon imports.

As to the open accounts which might be included in the bills receivable, the court of appeals declined to pass upon the validity of the taxes on them, as, according to the practice in that state, it was incumbent upon the relator to point out what part on the bills receivable were of that class, but did hold that the cash, and the notes which, it was admitted, were held in New York until maturity, although the proceeds of sale of goods imported and sold in the original packages, were properly within the taxing power of the state of New York under the section of the statute referred to, and that such exercise of power did not violate the Constitution of the United States.

The section of the Constitution relied upon by the plaintiff in error in the argument in this court is article 1, § 10, which provides:

'No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any state on imports or exports shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.'

The contention of the learned counsel for plaintiff in error is succinctly stated in his brief as follows:

'The ground taken by the plaintiff in error is that the tax on the proceeds of the goods in original packages in the course of transmission to the owner abroad is, in essence and effect, a tax upon the sale of said goods, and, therefore, a tax upon imports and a violation of the Constitution under the principle laid down in Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678, and the cases following that decision.'

The case referred to (Brown v. Maryland) is the leading one upon this subject, and has been cited perhaps as often as any of the great decisions of Chief Justice Marshall, and not attempted to be modified in the subsequent decisions of this court. In that case this section, as well as article 1, § 8, the commerce clause of the Constitution, were given consideration by the court. It was held that an act of the state of Maryland, which required an importer of foreign merchandise, under certain penalties, to take out a license from the state, for which he should be taxed $50, before he should be authorized to sell the imported articles in the original packages, was in violation of the commerce clause of the Constitution and within the prohibition on the states of the right to levy duty on importations. And in this connection the Chief Justice discussed and laid down certain general principles by which to determine whether an act of the legislature does interfere with the paramount purpose of the Constitution in these respects.

In a late case in this court, Brown v. Maryland is fully considered, and the following propositions are said to be established in that case:

'1. That the payment of duties to the United States gives the right to sell the thing imported, and that such right to sell cannot be forbidden or impaired by a state.

'2. That a tax upon the thing imported during the time it retains its character as an import and remains the property of the importer, 'in his warehouse, in the original form or package in which it was imported,' is a duty on imports within the meaning of the Constitution; and

3. That a state cannot, in the form of a license or otherwise, tax the right of the importer to sell; but, when the importer has so acted upon the goods imported that they have become incorporated or mixed with the general mass of property in the state, such goods have then lost their distinctive character as imports, and have become from that time subject to state taxation, not because they are the products of other countries, but because they are property within the state in like condition with other property that should eontribute, in the way of taxation, to the support of the government which protects the owner in his person and estate.' May v. New Orleans, 178 U. S. 496-507, 44 L. ed. 1165-1169, 20 Sup. Ct. Rep. 976-980.

In Cook v. Pennsylvania, 97 U. S. 566, 24 L. ed. 1015, it was held that the tax by the state on the amount of sales of goods made by sales by an auctioneer of imported goods, before incorporation into the general property in the state, was a tax on the goods themselves. Previous cases were reviewed by Mr. Justice Miller, and the result of them stated to be:

'The tax on sales made by an auctioneer is a tax on the goods sold within the terms of this last decision, and, indeed, within all the cases cited; and, when applied to foreign goods sold in the original packages of the importer, before they have become incorporated into the general property of the country, the law imposing such tax is void as laying a duty on imports.'

And in the late case of American Steel & Wire Co. v. Speed, 192 U. S. 518, 48 L. ed. 545, 24 Sup. Ct. Rep. 365, the distinction was pointed out between taxes upon goods imported from abroad—imported in the legal sense—and those sent from another state; as to which latter class of merchandise the states have the power, after the goods reach their destination and are held for sale, to tax them. Whereas, following Brown v. Maryland, where goods are imported in the strict sense, they preserve their character as imports so long as they are not sold in the original packages in which they are imported, or by the act of the importer incorporated into the general property of the state.

It may be stated as the result of the decision that, as to imported goods, the state may not impose taxes directly upon the goods or upon the right to sell them, or impose license fees upon importers for the privilege of selling, so long as the goods remain in the original package unincorporated into the general property. All such attempts at taxation are in violation of the Constitution and void.

But in Brown v. Maryland, and in subsequent cases in this court, the principle is recognized, as was stated by Chief Justice Marshall in the original case, that this prohibition in the Constitution should be carried 'no further than to prevent the states from doing that which it was the great object of the Constitution to prevent;'—which was interference with either the collection of duties upon imports or the right of the importer, who has paid duty, to sell the imported goods in the unbroken packages in which they were imported.

The Chief Justice instanced the case of the peddler who carried goods unpacked from the original packages for sale through the country, and the case of the importer of plate for his own use, whose privileges did not extend beyond the protection of the right of the importer to sell in the original packages, and whose conduct in reference to the goods had been such as to destroy their character as original packages and mingle them with the goods and property of the country, and thus, notwithstanding their importation, to make them, for the purpose of taxation, part of the general property of the country and liable to contribute, in consideration of the protection received, to the general welfare, by way of taxes levied for public purposes. This right of taxation by the state was distinctly recognized in May v. New Orleans, supra, where the goods imported in the original packages were separated therefrom and placed on the shelves and counters of the importing merchant.

The exact question in this case is, Has a condition of facts arisen which renders applicable the principle that the thing taxed has lost its distinctive character as an import in such sense that it has become subject to the taxing power of the state?

The power of the state of New York to impose a tax upon the cash and these notes as capital employed in a business within the state, laying aside for the moment the question as to their character as proceeds of the sale of imports, cannot be doubted in view of the previous decisions of this court. Particularly the recent case of Metropolitan L. Ins. Co. v. New Orleans, decided at the last term (205 U. S. 395, 51 L. ed. 853, 27 Sup. Ct. Rep. 499), wherein it was held that those engaged in the business of lending money in a state, being nonresidents of the same, might be taxed upon the capital employed in such business, precisely as the state could tax the capital of its own citizens.

The constitutional protection, as we have seen, is intended to secure the right to bring in, and to sell in the original packages, the goods imported; and, that this right may not be impaired, direct taxes upon goods or license taxes for the privilege of sale cannot be lovied; and the decision in Brown v. Maryland recognizes that the importer may lose this right of protection by mingling such goods with other property, and altering their character as importations in original packages, and making them by his conduct subject to the taxing power of the state. And we think the same principle may be applied to the proceeds of the sale of the goods, which, while not directly taxable as such, any more than the goods themselves, may be dealt with by the owner in such wise as to become subject to taxation as other property.

And we think such a case is presented in the facts now before us. The plaintiffs in error have established a warehouse and place of business in the state of New York for the sale of their imported goods. This business is of a permanent character; the goods are constantly received and sold and replaced by other goods. Cash is deposited in bank in New York, and is subject to use as the needs of the business may require. In this business it takes notes for sales of such goods. These notes are not directly transmitted to its home office in Dublin, but are held for collection in connection with the business in New York; and while the bulk of the proceeds may be sent abroad, sufficient sums are retained to meet the expenses of the business and pay duties on subsequent importations of goods.

We think the constitutional protection afforded the importer against state action does not require the property thus held and used to be exempted from state taxation. While it is true that a large proportion of proceeds of the notes after collection are sent to the home office of the plaintiffs in error, they are not taxed in transit as the proceeds of sale of imported goods; for the notes are held in New York for collection, and, when paid, a part of the proceeds are held for other purposes in connection with the business, and the balance remitted to the home office.

By reason of this course of conduct, we thinks these proceeds have lost that distinctive character which would give them the right to the protection of the Federal Constitution under the clause invoked, and the cash taxed and the amount of these notes have become capital invested in business in the state of New York, which business is carried on under the protection of the laws of that state, and, so far as the capital is invested in it, is subject to taxation by the laws of the state.

We think the Court of Appeals did not err, and the judgment of the Supreme Court rendered upon remittitur from the Court of Appeals is affirmed.