Cornell v. Coyne

after making the foregoing-statement, delivered the opinion of the court.

The contention is that inasmuch as this filled cheese was manufactured under contract for export, and was in fact exported, the tax of one cent per pound prescribed by section 9 was prohibited by the fifth paragraph of section 9,' article I, of the Constitution, which reads: “No tax or duty shall be laid on articles exported from any State.”

But this means that no burden shall be placed on exportation, and does not require that any bounty be given therefor. Congress has power to encourage exportation by remitting taxes on goods manufactured at home as it has power to encourage manufactures by duties on imports, yet the Constitution does not compel it to do either the one or the other. This power of encouraging is illustrated by section 11 of this act, which requires all imported filled cheese to pay, in addition to import duties, an internal revenue tax of eight cents a pound— eight times as much as that manufactured at home. To remit on articles exported the tax which is cast upon other like articles consumed at home, while perhaps not technically a bounty on exportation, has some of the elements thereof. By this act all filled cheese is subject to a manufacturing tax of one cent a pound. To remit that tax in favor of filled cheese exported may encourage the manufacturer to sock a.foreign rather than

“The constitutional prohibition against taxing exports is substantially the same when directed to the United States as when directed to a State. In the one case the words are, ‘No tax or duty shall be laid on articles exported from any State.’ Art. I, sec. 9, par. 5. In the other they are, ‘No State shall, without the consent of Congress, lay any imposts or duties on imports or exports.’ Art. I, sec. 10, par. 2. The prohibition

See also Brown v. Houston, 114 U. S. 622 ; Coe v. Errol, 116 U. S. 517 .

Justice Miller, in his lectures on the Constitution (p. 592) says:

“The Congress of the United States, during the late civil war, imposed a tax upon cotton'and tobacco, which tax was not limited to those products when in the process of transportation, but was assessed on all the cotton and tobacco in the country. It was argued that because the larger part of these products was exported out of the country and sold to foreign nations, and because their production was limited to a particular' part of the country, the. tax was' forbidden by the corresponding clause of the Constitution prohibiting Congress from levying a tax on exports. Although the question came at that time to the Supreme Court of the United States, it was not then decided, because of a division of opinion in that court. The recent cases, however, of Coe v. Errol, 116 U. S. 517 , and Turpin v. Burgess, 117 U. S. 504 , seem to decide that the objection .was not valid, and hold that only such property as is in the actual process of exportation, and which has begun its voyage or its preparation for the voyage, can be said to be an export.”

Some light is thrown on this question by the cases of Kidd v. Pearson, 128 U. S. 1 , and United States v. E. C. Knight Company, 156 U. S. 1 . In the former a manufacturer of intoxicating liquors in Iowa claimed to be beyond the reach of the prohibitory law of the State on the ground that he manufactured only for exportation, and therefore as Congress had

“Commerce succeeds to manufacture, and is not a part of it. . . . The fact that an article is manufactured for export to another State does not of itself make it an article of interstate commerce, and the intent of the manufacturer does not determine the time when the article or product passes from the control of the State and belongs to commerce.”

There is nothing in the case of Fairbank v. United States, 181 U. S. 283 , inconsistent With these views. There the question was as to the validity of a stamp tax on a foreign bill of lading, and it was held that it was a tax directly on the exportation. As said in the opinion with reference to the constitutional provision (p. 292): “The purpose of the restriction is that exportation, all exportation, shall be free from national burden.” It is unnecessary to refer to the earlier legislation of Congress which, as shown by counsel for the government in his brief, has been in harmony with this construction. From what we have said it is clear that there is no constitutional objection to the imposition of the same manufacturing tax on filled cheese manufactured for export and, in fact, exported, as upon other filled cheese:

Although the only charge in the declaration and the only matter complained of in the assignments of error is the uncon

Assuming, without deciding, that we may rightfully reverse the judgment of the Circuit Court for a failure to consider a question which was not presented, and that we may treat the declaration as amended so as to present this question, we are of opinion that the contention as to the construction of the act cannot be sustained. * The title of an act is referred to only in cases of doubt or ambiguity.

“The title is no part of an act and cannot enlarge or confer powers, or control the words of the act unless they are doubtful or ambiguous. United States v. Fisher, 2 Cranch, 358 , 386; Yazoo & Mississippi Railroad v. Thomas, 132 U. S. 174 , 188. The ambiguity must, be in the context and not in the title to render the latter of any avail,” United States v. Oregon &c. Railroad, 164 U. S. 526 , 541. See also Price v. Forrest, 173 U. S. 410 , 427, and cases cited.

There is no doubt or ambiguity in the act. Section 9 explicitly declares “that upon all filled cheese which shall be manufactured there shall be assessed and collected a tax of one cent per pound, to be paid by the manufacturer thereof.” And while the section contains a reference to existing laws

“But if there be any doubt as to the proper construction of this statute,'(and we think there is none,) then that construction must be adopted which is most advantageous to the interests of the government. The statute being a grant of a privilege, must be construed most strongly in favor of-the grantor. Gildart v, Gladstone, 12 East, 668, 675; Charles River Bridge v. Warren Bridge, 11 Pet. 420 , 544; Dubuque & Pacific Railroad v. Litchfield, 23 How. 66 ; The Binghamton Bridge, 3 Wall. 51 , 75; Rice v, Railroad Co., 1 Black, 358 , 380; Leaven-

Why Congress should grant an exemption from manufacturing tax in the case of exported tobacco' and not in the case of exported filled cheese, is not for us to determine. .Doubtless the reasons which prompted such difference-were satisfactory. It is enough that no exemption has been made in favor of the latter.

The judgment of the Circuit Court was right, and it is

Affirmed:

Mr. Justice Brown did not hear the argument and took no part in the decision of this case. '

Mr. Justice Harlan, with whom Mr. Chief Justice Fuller concurred, dissenting.

As this case went off upon demurrer-by the Government to the declaration its material allegations must be taken as true. The case cannot properly be dealt-with upon any other basis.

The declaration shows that the plaintiffs in error, who were plaintiffs below, were engaged in the business of manufacturing what is known in commercial circles as filled cheese; and that in execution of certain contracts made with foreign customers the plaintiffs manufactured large quantities of filled - cheese, and shipped it by instalments, directly from their factory in Illinois to Liverpool and London. It alleged .that “each quantity or instalment, of filled cheese manufactured, exported and delivered by the plaintiffs under said contracts was forwarded •by the plaintiffs as soon as the same was ready for shipment from their factory in said district, and prior to the shipment thereof the' plaintiffs applied to the defendant as such collector for permission to ship and forward the same without purchasing, and attaching to said filled cheese or to the said packages containing the said filled cheese the revenue stamps required by an alleged

Upon the occasion of each of the shipments the internal revenue collector exacted and collected (against the protest of the plaintiffs) a tax upon the cheese of one cent per pound, the collector insisting, that such a tax was imposed by the act of Congress of June 6, 1896, entitled “An act defining cheese, and also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of 'filled cheese.' ” 29 Stat. 253 , c. 337.

The first question to be. considered is whether Congress intended by that act to impose a tax of one cent per pound upon filled cheese manufactured for exportation, and which, it is admitted, was in fact exported immediately after being so manufactured. Such is the case before the court for consideration.

The ninth section of the act of 1896, under which the collection proceeded, provides that “upon all filled cheese which shall be manufactured there shall be assessed and collected a tax of one cent per pound, to be paid by the manufacturer thereof; and any fractional part of a pound in a package shall be taxed as a pound. The tax levied by this section shall be represented by coupon stamps; and the provisions of existing laws governing the engraving, issue, sale, accountability, effacement and destruction of stamps relating to tobacco and snuff, as far as applicable, are hereby made to apply to stamps provided for by this section.” § 9.

Observe that the section refers to “existing laws” relating,, among other things, to the issue and sale of stamps for tobacco and snuff. That reference, I submit, embraced section 3385 of the Revised Statutes, Title, Internal Revenue, which provides

It requires no argument to prove that, under that section, manufactured tobacco and snuff “intended for immediate exportation” could be exported without payment of any tax and without having affixed thereto any stamp other than “an engraved, stamp indicative of Such intention.” The effect' of the reference in the last clause of the ninth section of the act of 1896, to “existing laws governing the engraving, issue, sale, accountability, effacement and destruction of stamps relating to tobacco and snuff” was, I think, to incorporate into that act section -3385 of the Revised Statutes, so far as it could be made applicable to filled cheese, and to allow filled cheese intended for immediate exportation to be removed from the manufactory without payment of any tax, having affixed to it no other stamp than one engraved and indicating the intention to export. In that view, which seems to me incontestable, the purpose of Congress was to put manufactured filled cheese, intended for immediate exportation, upon the same footing as manufactured tobacco and snuff intended for immediate exportation and to permit its exportation without payment of any tax. Certainly section 3385 was one of the existing laws at the date of the passage of the act of 1896, and if applied to that act the result, I submit, must be as just stated. This question is within such narrow compass that it cannot be elucidated by extended discussion; and if-the bare reading of the above statutes, all together, does not bring the niind to the conclusion indicated by me, argument to that end would be unavailing.

So I leave that question and come to the proposition that if the act of 1896 is to be construed as imposing a tax upon the plaintiffs’ cheese, when about to be exported, then if is in con- - flict with the Constitution.

The eighth section of Article II of the Constitution enumerates certain powers which Congress may exercise, while the ninth section specifies certain things that Congress may not

I do not contend that the owner of an article about to be exported could rightfully ship it to a foreign country, without paying such tax as had legally attached in favor of the Government prior to the -date on 'which-the- owner formed the purpose to export. An existing property tax upon manufactured articles \Phich had become a part of the general mass of property and was held in the possession'of the owner for purposes of sale or use in this country, could not be defeated by reason of the fact that the owner — subsequent to manufacture, and after a substantial interval of time — formed the intention to export it. But that is not this case, although the court seems, to treat it as if it were one of that kind. The Government admitted by its demurrer to the declaration that the filled cheese in question was manufactured for exportation; that upon the completion of the manufacture the plaintiff as soon as it was ready for shipment from their factory set about to export it; and that.it was ready to be delivered for such exportation, when the collector took the position that before it could be removed from his district and exported, .the tax of one cent per pound, imposed by the ninth section of the act of 1896 “upon all filled cheese which shall be manufactured,” must be paid. It is, in effect, admitted of record that the plaintiffs never had any other purpose than to export the cheese, as soon as manufactured, in fulfilment of contracts previously made with foreign customers, and that they promptly prepared it for exportation. There was no appreciable interval of time between

In support of the views expressed in it the opinion reproduces the following observations by Mr. Justice Miller in one of his lectures on Constitutional Law p. (592): “The Congress

I submit that these observations do not justify the conclusion announced by the court; for, the eminent jurist who made them says that property is to be deemed an export from the time it is in the actual process of exportation and “its preparation for the voyage ” has begun. That is, in substance, the precise principle for which I am contending. Whilst the cheese was in the process of being manufactured, it was not of course a subject of taxation under the statute. It became manufactured filled. cheese, only when manufacture was completed. But, as soon as it was manufactured and prepared for shipment, and.when it was about to be started on its. journey to Europe,- the collector exacted from the plaintiffs the property tax imposed by the' act of 1896. In my judgment, within the meaning of the Constitution, and in everyjust sense/the cheese was in the actual process of exportation, and became an export from the moment when, jjmmdiately after the completion of manufacture, without loss of time, the plaintiffs, in good faith, prepared it .for shipment in- fulfillment of their contracts with foreign cus omers. In the Fairbank case the court held that ■

The views I have expressed are not in conflict with.the judgment in Turpin v. Burgess, 117 U. S. 504 , cited in the opinion of the court. That was.not a case of a property tax upon a manufactured article, intended for exportation, but a mere stamp tax imposed by the internal revenue law upon manufactured tobacco, arid placed upon the tobacco in order to indicate the purpose to export it. The only issue was as to the validity of the statute imposing that stamp tax. There was nothing to show any purpose to export the goods immediately upon the completion of manufacture. The goods remained in the factory, and the court said that they “might never be exported,” and “whether they would be or not would depend altogether on the will of the manufacturer.” There was no showing of preparation for exportation as soon as such

For the reasons stated, I am constrained to dissent from the opinion and judgment of the court.

I am authorized to say that the Chief Justice concurs in this opinion.