In Brown v. Maryland,86 decided in 1827, it had been held that a state law requiring all importers of foreign goods, and others selling the same by wholesale to pay a license fee was repugnant to the Commerce Clause.87 A tax on the sale of an imported article is declared to be a tax on the article itself; and a tax on the importer a tax on the business of importing.

In Woodruff v. Parham88 the doctrine declared in Brown v. Maryland was declared applicable only to imports from foreign countries. As to these it was declared the States might not exercise their taxing powers until, by the breaking of the original package, or sale by the importer, they had become commingled with the general goods of the States. This limitation upon the taxing power of the States was deduced from the constitutional prohibition as to the laying of export or import duties.

As to goods brought into the State from other parts of the United States, however, it was held that this constitutional prohibition does not apply, the terms export and import duties being declared to relate to foreign commerce only. And as to the Commerce Clause it was held that so long as the articles brought in are not discriminated against, no interference with interstate commerce is caused by their taxation, even in their original packages and unsold in the hands of the original consignee.

It will thus be seen that though the States may not, without the permission of Congress, extend the authority of their police regulations over articles of interstate commerce so long as they remain unsold and in their original packages in the hands of their original consignees, the law is otherwise as regards the taxing power. The distinction in favor of the taxing power is, according to the argument of the court in Woodruff v. Parham drawn from the consequences that would follow from an adoption of a contrary position, and from the purpose of the Commerce Clause in the minds of the framers of the Constitution, as shown in the historical records that nave come down to us.

86 12 Wh. 419; 6 L. ed. 678.

87 And also that it was repugnant to the clause prohibiting the States from levying duties on exports and imports. 88 8 Wall. 123; 19 L. ed. 382.