LA COMPAÑIA GENERAL DE TABACOS DE FILIPINAS, PLAINTIFF AND APPELLANT, VS. THE COLLECTOR OF INTERNAL REVENUE, DEFENDANT AND APPELLEE.

Plaintiff alleges “that it is a corporation duly organized and existing
under the laws of the Kingdom of Spain, licensed to do business in the
Philippine Islands, and maintaining its principal office in said
Islands in the City of Manila.” That the defendant is the duly
appointed, qualified and acting Collector of Internal Revenue of the
Philippine Islands. That during the year 1922, by contracts made in
London, England, plaintiff insured certain of its properties in the
Philippine Islands with the Guardian Assurance Company, of London,
England, a foreign insurance company, and paid it premiums thereon in
the sum of P4,832.35. That said assurance company is licensed to do
business in the Philippine Islands, and is represented by local agents.
That such insurance was obtained by the plaintiff itself from the
assurance company, of London, without the intervention of any agent
residing or doing business in the Philippine Islands. That the
defendant, under the provisions of section 192 of Act No. 2427, as
amended by Act No. 2430, has unlawfully and illegally levied and
assessed against the plaintiff a tax of 1 per centum upon the amount of
the premiums paid by plaintiff upon its foreign insurance, amounting to
P48.32. That plaintiff paid this amount under written protest, and that
the defendant has overruled and denied its protest, and has refused to
return the money to the plaintiff. Like allegations are made in a
second cause of action in which the plaintiff seeks to recover the
further sum of P1,000.50.

For answer the defendant alleges
that the taxes sought to be recovered were lawfully and legally levied,
assessed and collected by the said Collector under the provisions of
the Act in question.

The case was tried and submitted upon the following stipulation of facts:

“AGREED STATEMENT OF FACTS

“Come
now the Compañia General de Tabacos de Filipinas, plaintiff, and the
Collector of Internal. Revenue, defendant, by their undersigned
attorneys, and stipulate and agree upon the following statement of
facts in this case:

“I. That the plaintiff is a corporation
duly organized and existing under the laws of the Kingdom of Spain,
licensed to do business in the Philippine Islands, and maintaining its
principal office in said Islands in the City of Manila.

“II. That the defendant is the duly appointed, qualified and acting Collector of Internal Revenue for the Philippine Islands.

“III.
That, during the year 1922, plaintiff purchased and deposited in its
warehouses in the Philippine Islands, certain goods, wares arid
merchandise and, from time to time, by cable, notified its head office
in Barcelona, Spain, of the value thereof.

“IV. That
plaintiff’s head office in Barcelona thereupon insured said goods,
wares and merchandise, for and on behalf of plaintiff, against fire,
under open and running policies of insurance carried by it with the
Guardian Assurance Co., of London, England, and did pay to said
Guardian Assurance Co, in London, premiums on said fire insurance,
during said year, of the value of P4,832.25.

“V. That
plaintiff’s head office in Barcelona, in turn, charged to plaintiff’s
account the expense of said premiums paid by it as aforesaid, in the
sum of P4,832.25, for said year 1922.

“VI. That,
subsequent to the purchase by plaintiff of the goods, wares and
merchandise referred to hereinabove, plaintiff did, from time to time
during the year 1922, ship said goods abroad, for sale, and did, by
cable, at the time of making said shipments, notify its head office in
Barcelona, Spain, of the value of said shipments.

“VII.
That plaintiff’s head office in Barcelona thereupon insured said
shipments of goods, for and on behalf of plaintiff, against marine
risks, under open and running policies of insurance carried by it with
Le Comite Des Assurances Maritimes de Paris, of Paris, France, and did
pay to said Comite Des Assurances Maritimes, in Paris, France, premiums
on said marine insurance, during the year 1922, of the value of
P100,050.44.

“VIII. That plaintiff’s head office in
Barcelona, in turn, charged to plaintiff’s account the expense of said
premiums paid by it, as aforesaid, in the sum of P100,050.44, for the
year 1922.

“IX. That both the Guardian Assurance Co. of
London and Le Comite Des Assurances de Paris, are foreign corporations,
the former being licensed to do business in the Philippine Islands and
having an agent or agents in said Islands; that the latter company (Le
Comite Des Assurances de Paris) is not licensed to do business in the
Philippine Islands and has no agent therein.

“X. That all
insurance effected as hereinabove recited was obtained in the manner
hereinbefore recited and without the use of the services or
intervention of any agent, company, corporation or other representative
of the aforesaid two foreign insurance companies, residing or doing
business in the Philippine Islands.

“XI. That on or about
the 25th day of June, 1923, the defendant, in his capacity as Collector
of Internal Revenue for the Philippine Islands, and acting under the
pretended authority of sec. 192 of Act No. 2427, as amended by Act No.
2430, levied, assessed and collected from plaintiff a tax of 1 per cent
upon the premiums paid by plaintiff as aforesaid, as follows:

	“Guardian Assurance Co…………..		Premium P4,832.25	—	Tax	P48.32
	“Le Comite Des Assurances de Paris		Id. 100,050.044	—	Do.	1,000.50
						_______
		“a total tax in the sum of ………………………				P1,048.82

“XII. That on the 28th day of June, 1923, plaintiff paid to defendant
said tax, in the sum of P1,048.82, under instant protest in writing.

“XIII.
That plaintiff’s protest was overruled and denied by defendant on the
27th day of July, 1923; whereupon, and on the 16th day of August, 1923,
plaintiff filed its action for the recovery of said taxes.

“XIV. It is further stipulated that both parties to this action waive
the taking of testimony in open court and agree that this cause be
submitted for decision upon the foregoing facts.”

It was further stipulated that:

“It
is agreed that, had any losses occurred to plaintiff, during the year
1922, under the insurance policies carried by plaintiff’s head office
in Barcelona, Spain, with the Guardian Assurance Co., of London,
England, and with Le Comite Des Assurances Maritimes de Paris, of
Paris, France, for and on behalf of plaintiff, such losses would have
been paid to plaintiff’s head office, in London, and or Paris, as the
case might be, for plaintiff’s account.”

In
a well written, exhaustive opinion the lower court dismissed the
plaintiff’s complaint, with costs, from which the plaintiff appeals,
specifying the following assignment of errors:

“I.
The lower court erred in not declaring section 192 of Act No. 2427, as
amended by Act No. 2430, void, un- constitutional and violative of
section 3 of the Jones Law—Act of Congress of August 29, 1916,—which
provides that the rule of taxation in the Philippine Islands shall be
uniform.

“II. The lower court erred in not declaring
section 192 of Act No. 2427, as amended by Act No. 2430, void,
unconstitutional and violative of that certain other provision of
section 3 of the Jones Law which provides that no law shall be enacted
in the Philippine Islands which shall deprive any person of life,
liberty, or property without due process of law.

“III.
The lower court erred in not holding that the cables sent by plaintiff
to its head office in Barcelona (advising Barcelona of the value of
goods on deposit or being shipped by plaintiff from these Islands) were
collateral and subsequent to the creation of the principal contracts of
foreign insurance.”

JOHNS, J.:

As
appellant says, “the whole case revolves around the last proviso of
section 192 of Act No. 2427, as amended by Act No. 2430, which reads as
follows:

” ‘* * * And provided further,
That the prohibitions of this section shall not affect the right of an
owner of property to apply for and obtain for himself policies in
foreign companies in cases where said owner does not make use of the
services of any agent, company, or corporation residing or doing
business in the Philippine Islands. In all cases where owners of
property obtain insurance directly with foreign companies, it shall be
the duty of said owners to report to the Insurance Commissioner and to
the Collector of Internal Revenue each case where insurance has been so
effected, and shall pay the tax of one per centum on premiums paid, in
the manner required by law of insurance companies, and shall be subject
to the same penalties for failure to do so.’ “

Relying upon section 3 of the Jones Law, which provides:

“*
* * That the rule of taxation in said Islands shall be uniform, * * * ”
appellant vigorously contends that the law is unconstitutional, citing1
In re Thomas Page (60 Kan., 842; 58 Pac., 478; 47 L. R. A., 68), where
it is held:

“Taxation; Public Uses; Uniformity.—’An
act providing for the taxation of contracts of insurance made with
insurance companies not authorized to do business in Kansas, and
providing for the enforcement thereof (Laws 1899, c. 249), in part
authorizes the imposition of a tax for other than public purposes. It
is also a distinct departure from the constitutional rule of uniformity
and equality, and is invalid.”

This decision apparently sustains appellant’s contention.

The
statute upon which that statement is based is not quoted in the briefs
and is not in the library. The opinion says that in the last session of
the legislature there was passed:

” ‘An act
providing for the taxation of contracts of insurance made with
insurance companies not authorized to do business in Kansas, and
providing for the enforcement thereof.’ * * *”

And that:

“*
* * The statute provides that persons insuring property in Kansas with
companies not authorized to do business in the state shall report the
contracts of insurance to the superintendent of insurance for the
purpose of taxation. All such contracts are to be taxed ‘in a sum equal
to ten per cent of the amount of premiums paid or contracted to be paid
thereon * * *.'”

Any violation of the provisions of the Act would be a misdemeanor.

It appears that Page, the owner of a milling property in Topeka,
Kansas, wrote to an insurance company of Indianapolis, Indiana,
proposing to take out insurance on his milling property in Topeka. The
policy was issued by, and the premium paid to, that company, which was
not authorized to do business in Kansas, and which had no office or
agent in that State, The insurance commissioner made a demand upon Page
to pay the 10 per cent tax upon the policy, and Page refused payment
and challenged the law upon the ground that “the legislature shall
provide for a uniform and equal rate of assessment and taxation,” and
the court held the law unconstitutional. It will be noted that the
constitution there in question requires that “the legislature shall
provide for a uniform and equal rate of assessment and taxation.” The
Jones Law provides “that the rule of taxation in said Islands shall be
uniform.” The word “assessment” is not found in section 3 of the Jones
Law.

Among other things, the opinion in the Page case says:

“*
* * In the absence of constitutional restrictions, the sovereign power
of the state may be exercised almost without limitation in determining
what should be subject to taxation, and the manner of levying and
collecting taxes. Of course, arbitrary and unequal exactions cannot be
levied upon persons or property, nor can revenues raised by the
exercise of this power be expended for other than public purposes.
Unless, however, a tax for public purposes is imposed on false and
unjust principles, or violates an express provision of the
constitution, the will of the legislature is conclusive. * * *”

The opinion also says:

“*
* * To accomplish the uniformity and equality required by the
constitution, it would appear that assessment or valuation is
indispensable; and yet in this case the legislature, without assessment
or valuation of the property, attempts to make an arbitrary exaction.
All other property in the state is required to be taxed at its true
value in money, but here no account is taken of the solvency of the
company or the value of the security or policy. * * * “

Under the Kansas constitution, there must be a uniformity and equal
rate of both “assessment” and “taxation,” and by reason of the fact
that there was no provision in the law there in question for the
“assessment” of the value of the premiums, upon that point, the law was
held unconstitutional. That is not this case, and the omission and
distinction is important.

The opinion further says:

”
* * * The lack of uniformity is manifest in another way: One taxpayer
has a policy written in the state by a company with authority, upon
which no tax is imposed, while his neighbor has one written by an
unlicensed company at Indianapolis, or other place outside of the
state, which is subject to taxation; Taxes are uniform and equal when
imposed upon all property of the same character within the taxing
district, and yet here the insured pays a 10 per cent tax upon a policy
written outside of the state, while his neighbor pays nothing upon a
policy of equal value, and affording the same protection, because it is
written within the state. * * * “

Under the
Kansas statute, Page was required to pay 10 per cent of the premiums on
his foreign insurance, and here it is a tax of 1 per cent on such
premiums, and the law of this country provides that there shall be
collected from every person, company or corporation doing any kind of
insurance business in the Philippine Islands a tax of one per centum of
the total premiums of all premiums collected during each calendar year.
In other words, under the law here, the Government receives 1 per cent
of all the premiums paid on domestic insurance. It is very apparent
from the opinion in the Page case that there is no such a law in the
State of Kansas.

The last proviso of section 192 above
quoted must be construed in connection with, and as it relates to,
section 1505 of the Administrative Code of 1917, which is as follows:

“There
shall be collected from every person, company, or corporation (except
purely cooperative companies or associations) doing insurance business
of any sort in the Philippine Islands a tax of one per centum of the
total premiums collected during each calendar year, whether paid in
money, notes, credits, or any substitute for money, but premiums
refunded within six months after payment on account of rejection of
risk or returned for other reason to persons insured shall not be
included in the taxable receipts; nor shall any tax be paid upon
reinsurance by a company that has already paid the tax.

”
‘Cooperative companies or associations’ are such as are conducted by
the members thereof with money collected from among themselves and
solely for their own protection and not for profit.”

As to the law here in question, we have this situation, the Government
receives 1 per cent of all premiums collected on domestic insurance
which is paid by the insurance companies, and where the insurance is
made in a foreign company without the services of an agent by a person
here on property here, the provision above quoted requires that the
insured “shall pay the tax of one per centum on premiums paid, in the
manner required by law of insurance companies,” That is to say, in one
case, the 1 per cent tax is paid by the insurance company, and, in the
other, it is paid by the insured. But, as a matter of fact, in both
cases, it is paid by the insured. In actual practice, the amount of any
tax paid on the premiums collected by the insurance company is added
to, and becomes a part of, the premium itself, and, in the final
analysis, is paid by the insured. If, as a matter of fact, the 1 per
cent tax is collected on premiums on domestic insurance and is not
collected on premiums paid on foreign insurance, you would then have an
“invidious discrimination” against domestic insurance. It is also
contended that the Act in question is unconstitutional under that
portion of section 3 of the Jones Law, which reads as follows:

“That
no law shall be enacted in said Islands which shall deprive any person
of life, liberty or property without due process of law, or deny to any
person therein the equal protection of the laws. * * *”

Appellant says:

“Our
contention is that section 192 of Act No. 2427, as amended by Act No.
2430, is invalid in so far as it attempts to prohibit the making and
obtaining of marine and fire insurance policies outside of the
Philippine Islands, with foreign insurance companies, on property then
in these Islands, because it is a deprivation of the liberty of
citizens of these Islands without due process of law.

“The leading case on this question is that of Allgeyer vs.
State of Louisiana, 165 U. S., 578; 41 Law. ed., 832, in which the
State of Louisiana attempted to enforce the collection of a fine of
$1,000 from the defendants Allgeyer and others for the supposed
violation of Louisiana Statute No. 66, of 1894, entitled—

”
‘An Act to Prevent Persons, Corporations, or Firms from Dealing with
Marine Insurance Companies That Have Not Complied with Law.’

“This Act, in its material part, reads as follows:

” ‘Be it enacted by the General Assembly of the State of Louisiana,
That any person, firm, or corporation who shall fill up, sign, or issue
in this state any certificate of insurance under an open marine policy,
or who in any manner whatever does any act in this state to effect for
himself, or for another, insurance on property then in this state, in
any marine insurance company which has not complied in all respects
with the laws of this state, shall be subject to a fine of $1,000 for
each offense, * * *.’ (Allgeyer vs. State of Louisiana, 165 U. S., 578; 41 Law. ed., 832.)”

It will be noted that there is a very marked distinction between the
Louisiana statute upon which that decision is based and which was held
unconstitutional and the statute here in question. Under the Louisiana
statute, it was made a crime for any person in Louisiana to insure his
property in that State in an insurance company “which has not complied
in all respects with the laws of this state.” The law in question is
not intended to prohibit any person in the Philippines from insuring
his property here in a foreign insurance company. In fact, it
recognizes his right to do so. But it says to all persons, if you
insure your property in the Philippines in a foreign insurance company,
which is not authorized to do business here, you must pay the
Government the 1 per cent tax on the premium which it would have
received if the property had been insured through an agent of a company
authorized to do business in the Philippine Islands.

Appellant also relies on the ease of St. Louis Cotton Compress Co. vs.
State of Arkansas (260 U. S., 346; 67 Law. ed., 297). That was a suit
by the State of Arkansas against a corporation in Missouri authorized
to do business in Arkansas, and was brought to recover 5 per cent of
the gross premiums paid by the defendant for insurance upon its
property in Arkansas to companies, not authorized to do business in the
State. The answer alleged that the policies were contracted for,
delivered, and paid for in St. Louis, the domicil of the corporation,
because the rates were less than those charged by companies authorized
to do business in Arkansas.

It will be noted that the tax
there in question was 5 per cent. Here, it is 1 per cent, which is the
identical amount of tax required to be paid by domestic insurance
companies. No reference is made in the opinions of any of the decisions
cited as to the amount of tax, if any, which domestic insurance
companies are required to pay on premiums, and it is very doubtful
whether any such tax is, levied by any state on such corporations. No
decision founded on a like statute is cited in either brief, and in so
far as we are advised, there is no like statute. Hence, this case is
one of first impression not only in this court, but as to the statute
in question. The statute was enacted for revenue purposes.

To hold the law unconstitutional would in effect amount to a
discrimination in favor of a foreign insurance company which is not
authorized to do business in the Philippine Islands and against
insurance companies that are authorized to do business here.

After the trial court rendered its decision, the plaintiff filed a motion for a new trial in which it said:

“We believe the court failed to appreciate the nature of the insurance obtained and carried by plaintiff’s head office in Barcelona, Spain,” pointing out that, under the agreed statement of facts, plaintiff’s goods were insured “under open and running policies of insurance carried by it” (plaintiff’s head office in Barcelona, Spain).

In deciding that motion the lower court said:

“In
the first place, plaintiff is a corporation—a juridical person. There
is no difference between its juridical personality in Manila and in
Barcelona. In either place it acts by and through agents. In the
matters here in question the plaintiff in Manila acted by and through
its agents in Barcelona.

“In the second place, the agreed
statement of facts shows: ‘That, during the year 1922, plaintiff
purchased and deposited in its warehouses in the Philippine Islands
certain goods, wares and merchandise, and from time to time, by cable,
notified its head office in Barcelona, Spain, of the value thereof,’
and ‘That plaintiff’s head office in Barcelona thereupon insured said
goods, wares and merchandise, for and on behalf of plaintiff, against
fire, under open and running policies of insurance carried by it with
the Guardian Assurance Co., of London, England, and did pay to said
Guardian Assurance Co., in London, premiums on said fire insurance,
during said year, of the value of P4,832.25′, and That, subsequent to
the purchase by plaintiff of the goods, wares and merchandise referred
to hereinabove, plaintiff did, from time to time, during the year 1922,
ship said goods abroad, for sale, and did, by cable, at the time of
making said shipments, notify its head office in Barcelona, Spain, of
the value of said shipment’, and ‘That plaintiff’s head office in
Barcelona thereupon insured said shipments of goods, for and on behalf
of plaintiff, against marine risks, under open and running policies of
insurance carried by it with Le Comite Des Assurances Maritimes de
Paris, of Paris, France, and did pay to said Comite Des Assurances
Maritimes, in Paris, France, premiums on said marine insurance, during
the year 1922, of the value of P100,050.44’; and it was further agreed
that in each case plaintiff’s head office charged to plaintiff’s
account the expense of said premiums paid by it.

“Now, when were the respective cables sent by plaintiff from Manila, before or after
these goods were insured? The so-called open and running policies are
not before the court, but the said agreed facts clearly show that,
after the goods were purchased and deposited in warehouses in the
Philippine Islands, a cable was sent by plaintiff to its Barcelona
office giving their value, and that thereupon plaintiff’s
Barcelona office insured said goods against fire; that subsequent
thereto plaintiff shipped said goods abroad, and that, at the time of making said shipments, plaintiff cabled its head office in Barcelona the value of said shipments, and that thereupon plaintiff’s Barcelona office insured said shipments of goods, for and on behalf of plaintiff, against marine risks.

“While
it is true that the open and running policies may have been in
existence before the goods in question were purchased by plaintiff and
shipped abroad, yet those policies were not made applicable to said
goods until the respective cables were sent from Manila to Barcelona
and plaintiff’s office in Barcelona insured the goods as set forth in
the statement of facts. Thus the goods were insured against fire after
they were placed in warehouses in the Philippines and a cable was sent
from Manila giving their value, and they were insured against marine
risks after they were placed on board ship in Manila and a cable was
sent from Manila giving the value of the shipment.”

As the trial court says: “The present case is unique.” That is true.
Neither party has cited a decision under like statute, and in so far as
we are advised, there is no like statute.

In legal effect
there is no prohibition against a person doing business in the
Philippine Islands insuring property here with an insurance company,
which is not authorized to do business here. The Government says that
you can insure your property in either a foreign or domestic insurance
company, but if you insure it in a foreign insurance company, then you
must pay the 1 per cent tax which an insurance company authorized to do
business in the Philippine Islands is required to pay to the
Government, and the whole matter is left entirely to the discretion of
the insured. That is not discrimination. Neither does it “deprive any
person of life, liberty, or property, without due process of law,” and,
in actual practice, “the rule of taxation is uniform,” and the law in
question is alike as to any and all persons similarly situated. To hold
otherwise would be to require a domestic insurance corporation to pay a
tax of 1 per cent on its premiums collected, and to permit a person
having property here to insure it in a foreign corporation not
authorized to do business in the Philippines, and to avoid payment of
the 1 per cent tax. The law in question was enacted to prevent the
doing of that very thing.

Under all of the circumstances, we are not prepared to hold the law unconstitutional.

The judgment of the lower court is affirmed, with costs. So ordered.

Avanceña, C. J., Malcolm, Villamor, Ostrand, and Romualdez, JJ., concur.

DISSENTING

JOHNSON and STREET, JJ.:

We
regret that we are unable to concur in the decision of the court in
this case. By section 1505 of the Administrative Code a tax equivalent
to one per centum of the total premiums collected is imposed on all
insurance companies doing insurance business of any sort in the
Philippine Islands; and the closing proviso to section one of
Act No. 2430 in effect declares that in all cases where insurance is
effected on property in these Islands in a foreign company not
authorized to do business here, and without the intervention of an
agent,—with the result that the tax collector cannot get at the company
for the purpose of collecting the tax,—it shall be paid by the owner of
the property insured. As put in the brief of the Attorney-General the
Government says in substance to the owner: “If you insure your property
with insurance companies paying taxes to me you pay no taxes. If you
insure it with insurance companies which do not and cannot be made to
pay taxes to me because they are beyond my jurisdiction, you pay the
taxes that leak from my coffers on account of your act.”

Is
this a legitimate exercise of the taxing power? We think not. The
circumstance that the person primarily liable for a tax cannot be
reached for the purpose of collecting it, supplies no justification for
taking the tax out of another. A law so providing is arbitrary and
capricious and in our opinion constitutes a violation of the rule of
uniformity prescribed in section 3 of the Jones Law and is a denial of
the equal protection of the law guaranteed by the same section.

The requirement that the rule of taxation shall be uniform not only
means that in taxes on property the rate shall be uniform but also that
in business, occupation and privilege taxes generally, the amount of
the taxes shall be the same for all persons circumstanced alike, and
that furthermore the classification of persons for the purposes of such
taxation shall be reasonable and not arbitrary. (37 Cyc., 732-736.)

In Southern Railway Co. vs.
Greene (216 U. S., 400; 54 Law. ed., 536), the case was presented of a
foreign railway corporation that had come into the State of Alabama in
compliance with its laws, had therein acquired property of a fixed arid
permanent nature, upon which it had paid all the taxes theretofore
levied by the state. The legislature of the state then passed a law
imposing on foreign railway corporations an additional franchise tax
for the continued privilege of doing business within the state. No such
tax was imposed upon domestic corporations carrying on a precisely
similar business. It was held that the complainant corporation was a person
within the jurisdiction of the state and that the statute complained of
deprived it of the equal protection of the law, as the classification
was arbitrary and unreasonable. Said the court: “* * * While reasonable
classification is permitted, without doing violence to the equal
protection of the laws, such classification must be based upon some
real and substantial distinction, bearing a reasonable and just
relation to the things in respect to which such classification is
imposed; and classification cannot be arbitrarily made without any
substantial basis. Arbitrary selection, it has been said, cannot be
justified by calling it classification.”

If the legislature, in creating the tax on insurance contracts, had placed the burden of paying the tax on all owners
alike, the present plaintiff would undoubtedly have been liable. But
when those owners who place their insurance directly in a foreign
company without the intervention of an agent are singled out for
taxation merely because the insuring company cannot be reached, the
classification becomes discriminatory and vicious.

The author of the note to Hager vs.
Walker (129 Am. St. Rep., 238, 257), observes that a statute or
ordinance which, in imposing license taxes, discriminates in favor of
residents of the city or state as against non-residents in the same
class is unconstitutional. Says he: ” * * * Such classification, on the
sole ground of residence, cannot be sustained. It is arbitrary,
unreasonable, tends to restrain trade and to create monopoly, denies
the equal protection of the laws, and in so far as it applies to
residents of other states, violates the rule that the citizens of each
state are entitled to all the immunities of the citizens of the several
states, and perhaps is an interference with interstate commerce.” We
are of course not here concerned with any infringement of the rights of
citizens of the United States with reference to other states of the
Union, since the case before us presents the phase of a contract made
between the owner of property in these Islands and a foreign
corporation; but the discrimination here appears to be equally
invidious and repugnant to the sense of international comity.

In Juniata Limestone Co., vs.
Fagley (187 Pa. St., 193; 67 Am. St. Rep., 579), it appeared that the
legislature of the State of Pennsylvania had passed a law imposing a
tax on employers of foreign born, unnaturalized male persons, while no
such provision was made with respect to citizens of the state. It was
held that the Act was unconstitutional, as being in conflict with the
fourteenth amendment of the Federal Constitution and with a provision
in the state constitution providing that all taxes should be uniform
upon the same class of subjects. (See State vs. Goodwill, 33 W. Va., 179; 25 Am. St. Rep., 863; Ex Parte Kuback, 85 Cal., 274; 20 Am. St. Rep., 226.)

The undersigned are therefore of the opinion that judgment should be reversed and the tax returned to the plaintiff.