People ex rel. Attorney-General v. Naglee

• Decision Date: 01 December 1850
• Citation: 1 Cal. 232
• Court: California Supreme Court
• Parties: THE PEOPLE, EX REL. THE ATTORNEY-GENERAL v. NAGLEE.

1 Cal. 232

THE PEOPLE, EX REL. THE ATTORNEY-GENERAL v. NAGLEE.

Supreme Court of the State of California

December Term, 1850

December 1, 1850

APPEAL from the Superior Court of the City of San Francisco.

The proceeding in this case was an information in the nature of a quo warranto instituted by the Attorney-General against the defendant, the object of which was simply to procure the opinion of the Court upon the constitutionality of the law requiring foreigners to pay a license fee of twenty dollars a month for the privilege of working the gold mines in this State. The complaint alleged that the defendant had acted as a collector of license fees to foreign miners, and had exacted sums of money from different individuals, who were foreigners, for the privilege of working the gold mines of the State. A demurrer was put in to the complaint, and judgment was given in the Superior Court in favor of the defendant. From this judgment an appeal was taken.

The cause was argued in this Court by

S. Heydenfeldt, for the Attorney-General.

Wm. Smith and E. Randolph, for Defendant.

By the Court, BENNETT, J. The Legislature, at its last session, passed an Act requiring foreigners, in order to entitle them to the privilege of mining in this State, to procure a license for that purpose, and prohibiting all foreigners who had not such license, from working the mines.

It will be unnecessary to examine the questions in relation to the authority of the Attorney-General to institute the suit, and whether this form of proceeding is an appropriate method to test the constitutionality of the statute; inasmuch as we have to come to the conclusion that the judgment of the Superior Court should be affirmed, irrespective of the correctness of the respondent's positions upon these points.

The points on the part of the appellant, which will be considered, are, that the Act of the Legislature is in conflict: first, with the Constitution of the United States; secondly, with treaties of the United States with foreign nations; thirdly, with the treaty of Queretaro in particular; and fourthly, with the Bill of Rights and the Constitution of California.

First. Does the Act in question violate the Constitution of the United States? The appellant contends that it is an usurpation of the powers conferred upon Congress by that instrument. Before proceeding to an examination of this position, it is deemed advisable to recur to a few principles and rules of interpretation, which define the limits of the powers conferred upon Congress by the Constitution, and of those which the States still continue to retain. The General Government, though supreme within its constitutional sphere, is yet limited in the objects of its jurisdiction, and in the extent of its authority. So far as the Constitution has, either expressly or by necessary and unavoidable implication, conferred upon it exclusive powers, to that extent State rights and State authority are subordinate; but no farther than it can point out its authority in the Constitution does its jurisdiction extend—over everything beyond, State legislation is supreme. In determining the boundaries of apparently conflicting powers between the States and the General Government, the proper question is, not so much what has been, in terms, reserved to the States, as what has been, expressly or by necessary implication, granted by the people to the National Government; for each State possesses all the powers of an independent and sovereign nation, except so far as they have been ceded away by the Constitution. The Federal Government is but the creature of the people of the States, and, like an agent appointed for definite and specific purposes, must show an express or necessarily implied authority in the charter of its appointment, to give validity to its acts. In order, therefore, to maintain the position that a State has not the power to do a given act, which, without a transgression of international law, falls within the scope of the powers of any independent nation, it is necessary to show that such power has been transferred, by the Constitution, from the State to the Federal Government. These principles are so well settled and so universally recognized and admitted, that it is scarcely necessary to cite authorities in support or elucidation of them. But we will refer to a few. They were foreshadowed by the Federalist (No. 32, p. 143, Ed. of 1837), even before the adoption of the Constitution. It was stated in this, that the State Governments would clearly retain all the rights of sovereignty which they had before the adoption of the Constitution of the United States, and which were not by that act exclusively delegated to the United States. This exclusive delegation, or rather alienation of State sovereignty, would only exist in three cases: 1st, where the Constitution, in express terms, granted an exclusive authority to the union; 2d, where it granted, in one instance, an authority to the union, and in another, prohibited the States from exercising the like authority; and 3d, where it granted an authority to the union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant. After the adoption of the Constitution, so jealous were the States, lest their sovereignty should be entirely effaced by the general language of that instrument, that, at the first session of Congress, an amendment was proposed, which was subsequently ratified by the constitutional number of States, which declares, in explicit terms, that "the powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The judicial decisions of the Supreme Court of the United States, as well as of other Courts, have not essentially varied the contemporaneous exposition of the Constitution by the high authority of Hamilton. In Calder v. Bull (3 Dallas, 386), Judge Chase declared that the State Legislatures retained all the powers of legislation which were not expressly taken away by the Constitution of the United States. In Sturges v. Crowninshield (4 Wheaton, 193), the Chief Justice observed, that the powers of the States remained, after the adoption of the Constitution, what they were before, except so far as they had been abridged by that instrument; and in Houston v. Moore (5 Wheaton, 48), Mr. Justice Story, in the course of the clear exposition of the Constitution which he gave in that case, remarked, that the sovereignty of a State in the exercise of its legislation, was not to be impaired, unless it was clear that it had transcended its legitimate authority; and that no power ought to be sought, much less to be adjudged, in favor of the United States, unless it was clearly within the reach of its constitutional charter. "We are not," he adds, "at liberty to add one one jot of power to the National Government beyond what the people have granted by the Constitution." The same principle has been recognized in various other decisions on constitutional questions by the Supreme Court of the United States. (2 Cranch, 397; 3 Wheaton, 386; 2 Peters, 245; 16 Peters, 627, 655, 664; 11 Peters, 103, 132; 14 Peters, 579; 15 Peters, 509.)

These, then, being the rules, by which it is to be determined what the powers of the National Government are, and what powers still remain with the States, it is necessary, in the next place, to enquire how far the States have surrendered the power of taxation to the General Government, and to what extent they still retain that attribute of independence and sovereignty. With the exception of exports, imports and tonnage, and such things as are held by the United States Government, where its rights might be impaired if the property was taxed by the States, it seems to be conceded by most American jurists that the power of taxation exists in the States to the full extent in which it may be exercised by any sovereign nation. In support of this may be seen the following authorities: McCulloch v. Maryland, 4 Wheaton, 316, 425; Gibbons v. Ogden, 9 Wheaton, 1; Providence Bank v. Billings, 4 Peters, 561; Brown v. Maryland, 12 Wheaton, 441; 2 Story's Comm. on Constitution, 437; License cases, 5 Howard, 588. The power of taxation, in independent nations, is unrestricted as to tilings, and, with the exception of foreign ambassadors and agents, and their retinue, is unlimited as to persons; and is deemed a power indispensable to their welfare and even their existence. The several States may, therefore, subject to the above restrictions, tax everything within their territorial limits, and every person, whether citizen or foreigner, who resides under the protection of their respective governments.

In the cases of Norris v. The City of Boston, and Smith v. Turner (7 Howard, 283), it was held by the Supreme Court of the United States, that, so long as foreigners emigrating to our country remained on board of the ships in which they were "imported," they were properly to be considered as embraced within that provision of the Constitution which empowers Congress to regulate foreign commerce, and were, therefore, exempt from State taxation. But in those cases, it was conceded by the Judges, as well by those of the majority as of the minority, that after the passengers had landed and become intermingled with citizens, they wers subject to be taxed by the State. In the case of Smith v. Turner, above cited, Mr. Justice McLean observes (p. 405), that, when merchandise was taken from the ship, and became mingled with the property of the people of the State, it was, like other property, subject to the local law, and that the same rule applied to passengers. And he adds: "When they leave the ship and mingle with the citizens of the State they become subject to its laws." Mr. Justice Catron, in the same case (p. 452) declares it to be a truism not open to denial, that the States may tax all persons and property...