author: Mr. Chief Justice Burger

text:
    MATHEWS, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. WEBER
    No. 74-850.
    Argued November 4, 1975
    Decided January 14, 1976

      BuRger, C. J., delivered the opinion of the Court, in which all Members joined, except SteveNS, J., who took no part in the consideration or decision of the case.

      Michael Kimmel argued the cause for petitioner. With him on the brief were Solicitor General Bork, -Assistant Attorney General Lee, Deputy Solicitor General Friedman, Gerald P. Norton, and Morton Hollander. On the reply brief was Solicitor General Bork.

      Peter D. Ehrenhaft, by invitation of the Court, 421 U. S. 985, argued the cause and filed a brief as amicus curiae in support of the judgment below.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

The question presented in this case is whether the Federal Magistrates Act, 28 U. S. C. § 631 et seq., permits a United States district court to refer all Social Security benefit cases to United States magistrates for preliminary review of the administrative record, oral argument, and preparation of a recommended decision as to whether the record contains substantial evidence to support the administrative determination — all subject to an independent decision, on the record, by the district judge who may, in his discretion, hear the whole matter anew.

(1)

Respondent Weber brought this action in the United States District Court for the Central District of California to challenge the final determination of the Secretary of Health, Education, and Welfare that he was not entitled to reimbursement under the Medicare provisions of the Social Security Act, as added, 79 Stat. 291, and amended, 42 U. S. C. § 1395 et seq., for medical payments he made on behalf of his wife. Such a suit for judicial review is authorized by § 205 (g) of the Federal Magistrates Act, as added, 53 Stat. 1370, and amended, 42 U. S. C. § 405 (g), and governed by its standards. The court may consider only the pleadings and administrative record, and must accept the Secretary’s findings of fact so long as they are supported by substantial evidence.

When respondent’s complaint was filed, the Clerk of the court pursuant to court rule assigned the case to a named District Judge, and simultaneously referred it to a United States Magistrate with directions “to notice and conduct such factual hearings and legal argument as may be appropriate” and to “prepare a proposed written order or decision, together with proposed findings of fact and conclusions of law where necessary or appropriate” for consideration by the District Judge. The Clerk took these steps pursuant to General Order No. 10dr-D of the District Court, which requires initial reference to a magistrate in seven categories of review of administrative cases, including actions filed under 42 U. S. C. § 405 (g). The parties may object to the magistrate’s recommendations. After acting on any objections the magistrate is to forward the entire file to the district judge to whom the case is assigned for decision; the district judge “will calendar the matter for oral argument before him if he deems it necessary or appropriate.”

The Secretary moved to vacate the order of reference, arguing (1) that referral under a general order of this type violated Fed. Rule Civ. Proc. 53 (b) and (2) that such referral was not authorized by the Federal Magistrates Act. The Secretary also argued that the reference was of doubtful constitutionality and in contravention of the judicial review provisions of the Social Security Act, arguments that he has expressly declined to make in this Court. The District Court refused to vacate the order of reference, but certified the reference question for appeal under 28 U. S. C. § 1292 (b).

The Court of Appeals affirmed. 503 F. 2d 1049 (CA9 1974). That court stressed the limited and preliminary nature of the inquiry in review actions brought under 42 U. S. C. § 405 (g), the limited scope of the Magistrate’s role on reference, and the fact that final authority for decision remained with the District Judge. “Were the broad provisions of General Order No. 104MD . . . before us, the' Secretary might have grounds to complain. As applied, the rule is not vulnerable to the attack here mounted.” 503 F. 2d, at 1051. The Court of Appeals thus reached a decision squarely in conflict with the decision of the Court of Appeals for the Sixth Circuit in Ingram v. Richardson, 471 F. 2d 1268 (1972). We granted certiorari, 420 U. S. 989 (1975), and we affirm.

(2)

After several years of study, the Congress in 1968 enacted the Federal Magistrates Act, 28 U. S. C. § 631 et seg. The Act abolished the office of United States commissioner, and sought to “reform the first echelon of the Federal judiciary into an effective component of a modern scheme of justice by establishing a system of U. S. magistrates.” S. Rep. No. 371, 90th Cong., 1st Sess., 8 (1967) (hereafter Senate Report). In order to improve the former system and to attract the most competent men and women to the office, the Act in essence made the position analogous to the career service, replacing the fee system of compensation with substantial salaries; the Act also gave both full- and part-time magistrates a definite term of office, and required that wherever possible the district courts appoint only members of the bar to serve as magistrates. Magistrates took over most of the duties of the commissioners, and the Act gave them new authority to try a broad range of misdemeanors with the consent of the parties.

Title 28 U. S. “C. § 636 (b) outlines a procedure by which the district courts may call upon magistrates to perform other functions, in both civil and criminal cases. It provides:

“Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to—
“(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;
“(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and
“(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.”

The three examples § 636 (b) sets out are, as the statute itself states, not exclusive. The Senate sponsor of the legislation, Senator Tydings, testified in the House hearings:

“The Magistrate[s] Act specifies these three areas because they came up in our hearings and we thought they were areas in which the district courts might be able to benefit from the magistrate's services. We did not limit the courts to the areas mentioned. Nor did we require that they use the magistrates for additional functions at all.
“We hope and think that innovative, imaginative judges who want to clean up their caseload backlog will utilize the U. S. magistrates in these areas and perhaps even come up with new areas to increase the efficiency of their courts.” Hearings on the Federal Magistrates Act before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 2d Sess., 81 (1968) (hereafter House Hearings).

See also Hearings on the Federal Magistrates Act before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., and 90th Cong., 1st Sess., 14, 27 (1966 and 1967) (hereafter Senate Hearings).

Section 636 (b) was included to “permit . . . the U. S. district courts to assign magistrates, as officers of the courts, a variety of functions . . . presently performable only by the judges themselves.” Senate Report 12. In enacting this section and in expanding the criminal jurisdiction conferred upon magistrates, Congress hoped by “increasing the scope of the responsibilities that can be discharged by that office, ... to establish a system capable of increasing the overall efficiency of the Federal judiciary . . . .” Id., at 11.

The Act grew from Congress’ recognition that a multitude of new statutes and regulations had created an avalanche of additional work for the district courts which could be performed only by multiplying the number of judges or giving judges additional assistance. The Secretary argues that Congress intended the transfer to magistrates of simply the irksome, ministerial tasks; respondent urges that Congress intended magistrates to take on a wide range of substantive judicial duties and advisory functions. We need not accept the characterization of the federal magistrate as either a “para-judge,” as respondent would have it, or a “super-notary,” as the Secretary argues, in order to resolve this case; finding the best analogy to this new office is not particularly important. Congress had a number of precedents for this new officer before it: British masters, justices of peace, and magistrates; our own traditional special masters in equity; and pretrial examiners. The office Congress created drew on all prior experience. What is important is that the congressional anticipation is becoming a reality; in fiscal 1975, for example, the 500 full- or part-time United States magistrates disposed of 255,061 matters, most of which would otherwise have occupied district judges. These included 36,766 civil proceedings, 537 of which were Social Security review cases. Annual Report of the Director, Administrative Office of the United States Courts VIII-4 (1975). See also Sussman, The Fourth Tier in the Federal Judicial System: The United States Magistrate, 56 Chicago Bar Record 134 (1974); Geffen, Practice Before the United States Magistrate, 47 L. A. Bar Bull. 462 (1972); Doyle, Implementing the Federal Magistrates Act, 39 J: Kan. Bar Assn. 25 (1970).

Congress manifested concern as well as enthusiasm, however, in considering the Act. Several witnesses, including the Director of the Administrative Office and representatives of the Justice Department, expressed some fear that Congress might improperly delegate to magistrates duties reserved by the Constitution to Article III judges. Senate Hearings 107-128, 241n; House Hearings 123-128. The hearings and committee reports indicate that in § 636 (b) Congress met this problem in two ways. First, Congress restricted the range of matters that may be referred to a magistrate to those where referral is “not inconsistent with the Constitution and laws of the United States . . . Second, Congress limited the magistrate’s role in cases referred to him under § 636 (b). The Act’s sponsors made it quite clear that the magistrate acts “under the supervision of the district judges” when he accepts a referral, and that authority for making final decisions remains at all times with the district judge. Senate Report 12. “[A] district judge would retain ultimate responsibility for decision making in every instance in which a magistrate might exercise additional duties jurisdiction.” House Hearings 73 (testimony of Sen. Tydings). See also id., at 127 (testimony of Asst. Deputy Atty. Gen. Finley).

(3)

We need not define the full reach of a magistrate’s authority under the Act, or reach the broad provisions of General Order No. 10A-D, in order to decide this case. Under the part of the order at issue the magistrates perform a limited function which falls well within the range of duties Congress empowered the district courts to assign to them. The magistrate is directed to conduct a preliminary review of a closed administrative record— closed because under § 206 (g) of the Social Security Act, 42 U. S. C. § 405 (g), neither party may put any additional evidence before the district court. The magistrate gives only a recommendation to the judge, and only on the single, narrow issue: is there in the record substantial evidence to support the Secretary’s decision? The magistrate may do no more than propose a recommendation, and neither § 636 (b) nor the General Order gives such recommendation presumptive weight. The district judge is free to follow it or wholly to ignore it, or, if he is not satisfied, he may conduct the review in whole or in part anew. The authority — and the responsibility — to make an informed, final determination, we emphasize, remains with the judge.

The magistrate’s limited role in this type of case nonetheless substantially assists the district judge in the performance of his judicial function, and benefits both him and the parties. A magistrate’s review helps focus the court’s attention on the relevant portions of what may be a voluminous record, from a point of view as neutral as that of an Article III judge. Review also helps the court move directly to those legal arguments made by the parties that find some support in the record. Finally, the magistrate’s report puts before the district judge a preliminary evaluation of the cumulative effect of the evidence in the record, to which the parties may address argument, and in this way narrows the dispute. Each step of the process takes place with the full participation of the parties. They know precisely what recommendations the judge is receiving and may frame their arguments accordingly.

We conclude that in the context of this case the preliminary-review function assigned to the magistrate, and at issue here, is one of the “additional duties” that the statute contemplates magistrates are to perform.

(4)

The Secretary argues that the magistrate, in taking this reference, functions as a special master. From this premise, the Secretary asks us to hold that a general rule requiring automatic reference in a category of cases does not comply with the mandate of Fed. Rule Civ. Proc. 53 (b) that “reference to a master shall be the exception and not the rule,” made in nonjury cases “only upon a showing that some exceptional condition requires it.” He also argues that, for similar reasons, the reference here is not permissible under our decision in La Buy v. Howes Leather Co., 352 U. S. 249 (1957).

Section 636 (b) expressly provides that a district court may, in an appropriate case and in accordance with Fed. Rule Civ. Proc. 53, call upon a magistrate to act as a special master. But the statute also is clear that not every reference, for whatever purpose, is to be characterized as a reference to a special master. It treats references to the magistrate acting as master quite separately in subsection (1), indicating by its structure that other references are of a different sort. Moreover, Rule 53 (e) provides that, in non jury cases referred to a master, the court shall accept any finding of fact that is not clearly erroneous. Under the reference in this case, however, the judge remains free to give the magistrate's recommendation whatever weight the judge decides it merits. It cannot be said, therefore, that the magistrate acts as a special master in the sense that either Rule 53 or the Federal Magistrates Act uses that term. The order of reference at issue does not constitute the magistrate a special master.

The Secretary argues that the magistrate will be a master in fact because the judge will accept automatically the recommendation made in every case. Nothing in the record or within the scope of permissible judicial notice supports this argument; nor does common observation of the performance of United States judges remotely lend the slightest credence to such an extravagant assertion. We express no opinion with respect to either the wisdom or the validity of automatic referral in other types of cases; only the narrow portion of General Order No. 10T-D that led to reference of this particular case is before us today. In this narrow range of cases, reference promotes more focused, and so more careful, decisionmaking by the district judge. We categorically reject the suggestion that judges will accept, uncritically, recommendations of magistrates.

Our decision in La Buy v. Howes Leather Co., supra, does not call for a different result. In La Buy, the District Judge on his own motion referred to a special master two complex, protracted antitrust cases on the eve of trial. The cases had been pending before him for several years, he had heard pretrial motions, and he was familiar with the issues involved. The master, a member of the bar, was to hear and decide the entire case, subject to review by the District Judge under the “clearly erroneous” test. The judge cited the problems attendant to docket congestion to satisfy Rule 53’s requirement that a reference to a special master be justified by “exceptional circumstances.” The Court held that on these facts reference was not permissible and affirmed the Court of Appeals’ supervisory prohibition.

La Buy, although nearly two decades past, is the most recent of our cases dealing with special masters, and our decision today does not erode it. The Magistrate here acted in his capacity as magistrate, not as a special master, under a reference authorized by an Act passed 10 years after La Buy was decided. Other factors distinguish this case from La Buy as well. The issues here are as simple as they were complex in La Buy, and the District Judge had not yet invested any time in familiarizing himself with the case. The reference in this case will result in a recommendation that carries only such weight as its merit commands and the sound discretion of the judge warrants. We are persuaded that the important premises from which the La Buy decision proceeded are not threatened here.

Finally, our decision in Wingo v. Wedding, 418 U. S. 461 (1974), does not bear on this case. The Secretary has abandoned any claim that the statute giving the District Court jurisdiction of the case in the first instance, 42 U. S. C. § 405 (g), precludes reference to a magistrate. It was the Court’s reading of the habeas corpus statute, 28 U. S. C. § 2243, that formed the basis for the holding in Wingo v. Wedding.

Affirmed.

Mr. Justice Stevens took no part in the consideration or decision of this case.

       General Order No. 104^-D provides for reference in the following types of review of administrative cases:
      “(A) Actions to review administrative determinations re entitlement to benefits under the Social Security Act and related statutes, including but not limited to actions filed under 42 U. S. C. § 405 (g).
      “(B) Actions filed by the United States or a carrier to review, implement or restrain orders of the Interstate Commerce Commission re freight overcharges, including but not limited to actions under 28 U. S. C. § 1336 and 49 U. S. C. § 304a.
      “(C) Actions, whether in the form of judicial review, habeas corpus or otherwise, for review of orders and other actions of the Immigration and Naturalization Service. Included, but not by way of limitation, are actions involving deportation orders, denial of preference classification visas and denial of petitions to adjust status.
      “(D) Actions for review of adjudications by the Civil Service Commission, or the various departments or agencies, involving personnel actions such as wrongful discharge, reductions in force, transfers, retirements, etc.
      “(E) Actions for review of an order of any branch or establishment of the military service denying discharge of petitioner from the military, whether such actions are brought in the form of petitions for judicial review, habeas corpus or actions for declaratory relief and injunction.
      “(F) Actions filed pursuant to 18 U. S. C. §923 (f)(3) to review administrative decisions denying applications for licenses to engage in business as a firearms or ammunition importer, manufacturer or dealer.
      “(G) Actions to review administrative decisions by the Department of Labor denying applications for alien employment certification required pursuant to the provisions of 8 U. S. C. §1182 (a) (14).”
      The petition for certiorari raises only the issue of the propriety of the part of subsection (A) of the General Order that authorizes reference of cases brought under 42 U. S. C. §405 (g), and we intimate no opinion on the validity of its other provisions.

       Because respondent has declined to appear, we invited an amicus curiae to support the decision of the Court of Appeals. 421 U. S. 985 (1975).

       For convenience, the position taken by amicus in support of the Court of Appeals’ judgment will be referred to as the position of respondent.

       The administration of the Act also profits from the British analogy. See Institute of Judicial Administration, Report of the Committee to Study the Role of Masters in the English Judicial System (Federal Judicial Center 1974).

       Some courts have manifested a like concern. See TPO, Inc. v. McMillen, 460 F. 2d 348 (CA7 1972); Reed v. Board of Election Comm’rs, 459 F. 2d 121 (CA1 1972). But of, Palmore v. United States, 411 U. S. 389 (1973). See also Note, Masters and Magistrates in the Federal Courts, 88 Harv. L. Rev. 779 (1975); Comment, An Adjudicative Role for Federal Magistrates in Civil Cases, 40 U. Chi. L. Rev. 584 (1973). Because we limit our consideration of the Act and General Order No. 10A-D to the particular reference presented by this case, we need not deal with these broad constitutional issues. Petitioner expressly declines to rely on any constitutional argument.

       Ordinarily, the parties will agree as to the legal standard, leaving as the sole issue whether the Secretary’s determination is supported by substantial evidence. In some cases, the magistrate may preliminarily resolve issues of law before making a recommendation; in some few cases, the recommendation may turn wholly upon an issue of law. The parties have not suggested that cases in either of these sub categories raise issues of statutory interpretation that require separate treatment, and we do not reach them on this record. Experience with the magistrate’s role under the Act may well lead to the conclusion that sound judicial administration calls for sending directly to the district judge those cases that turn solely upon issues of law.

       Though we do not rely upon subsequently expressed congressional views, the Congress plainly considers claims such as respondent brought in the District Court as matters that could appropriately be referred for preliminary review to a magistrate. In considering magistrates’ salaries in 1972, a Senate subcommittee noted: “Magistrates are judicial officers of the Federal district courts. . . . They may also be authorized to screen prisoner petitions, hold pretrial conferences in civil and criminal cases, hear certain preliminary motions, review social security appeals, review Narcotics Addict Rehabilitation Act matters, and serve as special masters. In short, they render valuable assistance to the judges of the district courts, thereby freeing the time of those judges for the actual trial of cases.” S. Rep. No. 92-1065, p. 3 (1972) (emphasis added).
      The Administrative Office of the United States Courts, the statutory body that supervises the administrative aspects of the Act pursuant to 28 U. S. C. § 604 (d) (1), reads the Act in the same way. It has distributed a “checklist” of magistrate duties that includes review of Social Security appeals brought under 42 U. S. C. § 405 (g). Judicial Conference of the United States, Committee on the Administration of the Federal Magistrates System, Duties Which Might Be Assigned to U. S. Magistrates (Mar. 14, 1975). The Administrative Office first noted in its 1972 report that district courts were assigning Social Security appeals to magistrates under the 1968 Act. Administrative Office of the U. S. Courts, Annual Report of the Director VI-8 (1972).

       These arguments persuaded the Court of Appeals in Ingram v. Richardson, 471 F. 2d 1268 (CA6 1972). Other federal courts to consider the issue reached a contrary result. Yascavage v. Weinberger, 379 F. Supp. 1297 (MD Pa. 1974); Bell v. Weinberger, 378 F. Supp. 198 (ND Ga. 1974); Murphy v. Weinberger [Oct. 1966-Dec. 1974 Transfer Binder] CCH Unempl. Ins. Rep. ¶ 17,608 (Conn. 1974).
      Several courts have relied upon these arguments to one extent or another in disapproving references that involved a broader grant of authority to the magistrate. See, e. g., Flowers v. Crouch-Walker Corp., 507 F. 2d 1378 (CA7 1974); TPO, Inc. v. McMillen, 460 F. 2d 348 (CA7 1972); Reed v. Board of Election Comm’rs, 459 F. 2d 121 (CA1 1972).

       See generally Kaufman, Masters in the Federal Courts: Rule 53, 58 Col. L. Rev. 452 (1958); CAB v. Carefree Travel, Inc., 513 F. 2d 375 (CA2 1975).


source: Caselaw Access Project

author: Mr. Justice Brennan Mr. Justice White,

license: Public Domain

text:
    MICHELIN TIRE CORP. v. WAGES, TAX COMMISSIONER, et al.
    No. 74-1396.
    Argued October 15, 1975
    Decided January 14, 1976

      Brennan, J., delivered the opinion of the Court, in which Btjrger, C. J., and Stewart, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. White, J., filed an opinion concurring in the judgment, post, p. 302. Stevens, J., took no part in the consideration or decision of the case.

      Earle B. May, Jr., argued the cause for petitioner. With him on the brief were F. M. Bird, Edward R. Kane, and E. A. Dominianni.

      Hosea Alexander Stephens, Jr., argued the cause for respondents. With him on the brief was Homer M. Stark

        Curt T. Schneider, Attorney General, and Jonathan P. Small and Clarence J. Malone, Assistant Attorneys General, filed a brief for the State of Kansas et-al. as amici curiae urging affirmance.
      Briefs of amici curiae were filed by Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Chief Deputy Attorney General, Richard L. Chambers, Deputy Attorney General, H. Perry Michael, Senior Assistant Attorney General, and David A. Runnion, Assistant Attorney General, for the State of Georgia; by William J. Brown, Attorney General, and John C. Duffy, Jr., Assistant Attorney General, for the Tax Commissioner of Ohio; and by John H. Larson, James Dexter Clark, Jonathan Day, Leonard Putnam, Richard W. Marston, Richard J. Moore, Robert M. Wash, Douglas J. Maloney, Adrian Kuyper, Ray T. Sullivan, Jr., John B. Heinrich, William Sabourin, George P. Kading, William M. Siegel, Byron D. Athan, Robert A. Rehberg, Thomas B. Sawyer, Calvin E. Baldwin, Charles R. Mack, Joseph Kase, Jr., Thomas M. O’Connor, and John J. Doherty for the county of Los Angeles, California, et al.

   Mr. Justice Brennan

delivered the opinion of the Court.

Respondents, the Tax Commissioner and Tax Assessors of Gwinnett County, Ga., assessed ad valorem property taxes against tires and tubes imported by petitioner from France .and Nova Scotia that were included on the assessment dates in an inventory maintained at its wholesale distribution warehouse in the county. Petitioner brought this action for declaratory and injunctive relief in the Superior Court of Gwinnett County, alleging that with the exception of certain passenger tubes that had been removed from the original shipping cartons, the ad valorem property taxes assessed against its inventory of imported tires and tubes were prohibited by Art. I, § 10, cl. 2, of the Constitution, which provides in pertinent part: “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 . . . .” After trial, the Superior Court granted the requested declaratory and injunctive relief. On appeal, the Supreme Court of Georgia affirmed in part and reversed in part, agreeing that the tubes in the corrugated shipping cartons were immune from ad valorem taxation, but holding that the tires had lost their status as imports and had become subject to such taxation because they had been mingled with other tires imported in bulk, sorted, and arranged for sale. 233 Ga. 712, 214 S. E. 2d 349 (1975). We granted certiorari, 422 U. S. 1040 (1975). The only question presented is whether the Georgia Supreme Court was correct in holding that the tires were subject to the ad valorem property tax. We affirm without addressing the question whether the Georgia Supreme Court was correct in holding that the tires had lost their status as imports. We hold that, in any event, Georgia’s assessment of a nondiscriminatory ad valorem property tax against the imported tires is not within the constitutional prohibition against laying “any Imposts or Duties on Imports . . and that insofar as Low v. Austin, 13 Wall. 29 (1872) is to the contrary, that decision is overruled.

I

Petitioner, a New York corporation qualified to do business in Georgia, operates as an importer and wholesale distributor in the United States of automobile and truck tires and tubes manufactured in France and Nova Scotia by Michelin Tires, Ltd. The business is operated from distribution warehouses in various parts of the country. Distribution and sale of tires and tubes from the Gwinnett County warehouse is limited to the 250-300 franchised dealers with whom petitioner does all of its business in six southeastern States. Some 25% of the tires and tubes are manufactured in and imported from Nova Scotia, and are brought to the United States in tractor-driven, over-the-road trailers packed and sealed at the Nova Scotia factory. The remaining 75% of the imported tires and tubes are brought to the United States by sea from France and Nova Scotia in sea vans packed and sealed at the foreign factories. Sea vans are essentially over-the-road trailers from which the wheels are removed before being loaded aboard ship. Upon arrival of the ship at the United States port of entry, the vans are unloaded, the wheels are replaced, and the vans are tractor-hauled to petitioner’s distribution warehouse after clearing customs upon payment of a 4%- import duty.

The imported tires, each of which has its own serial number, are packed in bulk into the trailers and vans, without otherwise being packaged or bundled. They lose their identity as a unit, however, when unloaded from the trailers and vans at the distribution warehouse. When unloaded they are sorted by size and style, without segregation by place of manufacture, stacked on wooden pallets each bearing four stacks of five tires of the same size and style, and stored in pallet stacks of three pallets each. This is the only processing required or performed to ready the tires for sale and delivery to the franchised dealers.

Sales of tires and tubes from the Gwinnett County distribution warehouse to the franchised dealers average 4,000-5,000 pounds per sale. Orders are filled without regard to the shipments in which the tires and tubes arrived in the United States or the place of their manufacture. Delivery to the franchised dealers is by common carrier or customer pickup.

II

Both Georgia courts addressed the question whether, without regard to whether the imported tires had lost their character as imports, Georgia’s nondiscriminatory ad valorem tax fell within the constitutional prohibition against the laying by States of “any Imposts or Duties on Imports . . . .” The Superior Court expressed strong doubts that the ad valorem tax fell within the prohibition but concluded that it was bound by this Court’s decisions to the contrary. The Superior Court stated:

“While it would seem that where said tires and tubes have been placed in [petitioner’s] general inventory for the purpose of sale to its customers,... such inventory should be taxed to the same extent as any other inventory of any other business in Gwinnett County, and the Court would so hold if supported by the law, it is clear that where the property is imported for resale it retains its import exemption from ad valorem taxes until after such sale,” “[for] [t]he immunity of imported goods from local taxation includes immunity from local ad valorem property taxes; Hooven & Allison Company v. Evatt, 324 U. S. 652; Low v. Austin, 80 U. S. 29.” Pet. for Cert., App. A-4, A-3.

Similarly, the Georgia Supreme Court stated, 233 Ga., at 722, 214 S. E. 2d, at 355:

“[Petitioners] argue that an annual ad valorem tax is not a tax on imports within the meaning of the federal constitutional provision. We reject this argument on the basis of the above-cited authority. [E. g., Low v. Austin.]”

Low v. Austin, supra, is the leading decision of this Court holding that the States are prohibited by the Import-Export Clause from imposing a nondiscriminatory ad valorem property tax on imported goods until they lose their character as imports and become incorporated into the mass of property in the State. The Court there reviewed a decision of the California Supreme Court that had sustained the constitutionality of California's nondiscriminatory ad valorem tax on the ground that the Import-Export Clause only prohibited taxes upon the character of the goods as imports and therefore did not prohibit nondiscriminatory taxes upon the goods as property. See 13 Wall., at 30-31. This Court reversed on its reading of the seminal opinion construing the Import-Export Clause, Brown v. Maryland, 12 Wheat. 419 (1827), as holding that “[w]hilst retaining their character as imports, a tax upon them, in any shape, is within the constitutional prohibition.” 13 Wall., at 34.

Scholarly analysis has been uniformly critical of Low v. Austin. It is true that Mr. Chief Justice Marshall, speaking for the Court in Brown v. Maryland, supra, at 442, said that “while [the thing imported remains] the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution.” Commentators have uniformly agreed that Low v. Austin misread this dictum in holding that the Court in Brown included nondiscriminatory ad valorem property taxes among prohibited “imposts” or “duties,” for the contrary conclusion is plainly to be inferred from consideration of the specific abuses which led the Framers to include the Import-Export Clause in the Constitution. See, e. g., Powell, State Taxation of Imports — When Does an Import Cease to Be an Import?, 58 Harv. L. Rev. 858 (1945); Note, The Supreme Court, 1958 Term, 73 Harv. L. Rev. 126, 176 (1959); Early & Weitzman, A Century of Dissent: The Immunity of Goods Imported for Resale From Nondiscriminatory State Personal Property Taxes, 7 Sw. U. L. Rev. 247 (1975); Dakin, The Protective Cloak of the Export-Import Clause: Immunity for the Goods or Immunity for the Process?, 19 La. L. Rev. 747 (1959).

Our independent study persuades us that a nondiscriminatory ad valorem property tax is not the type of state exaction which the Framers of the Constitution or the Court in Brown had in mind as being an “impost” or “duty” and that Low v. Austin’s reliance upon the Brown dictum to reach the contrary conclusion was misplaced.

Ill

One of the major defects of the Articles of Confederation, and a compelling reason for the calling of the Constitutional Convention of 1787, was the fact that the Articles essentially left the individual States free to burden commerce both among themselves and with foreign countries very much as they pleased. Before 1787 it was commonplace for seaboard States with port facilities to derive revenue to defray the costs of state and local governments by imposing taxes on imported goods destined for customers in other States. At the same time, there was no secure source of revenue for the central government. James Madison, in his Preface to Debates in the Convention of 1787, 3 M. Farrand, The Records of the Federal Convention of 1787, p. 542 (1911) (hereafter Farrand), provides a graphic description of the situation:

“The other source of dissatisfaction was the peculiar situation of some of the States, which having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, thro whose ports, their commerce was carryed on. New Jersey, placed between Phila. & N. York, was likened to a Cask tapped at both ends: and N. Carolina between Virga. & S. Carolina to a patient bleeding at both Arms. The Articles of Confederation provided no remedy for the complaint: which produced a strong protest on the part of N. Jersey; and never ceased to be a source of dissatisfaction & discord, until the new Constitution, superseded the old.”

And further, id., at 546-548:

“Rh. I. was the only exception to a compliance with the recommendation from Annapolis [to have a Const. Convention], well known to have been swayed by an obdurate adherence to an advantage which her position gave her of taxing her neighbors thro’ their consumption of imported supplies, an advantage which it was foreseen would be taken from her by a revisal of the Articles of Confederation.
“The same want of a general power over Commerce led to an exercise of this power separately, by the States, wch not only proved abortive, but engendered rival, conflicting and angry regulations. Besides the vain attempts to supply their respective treasuries by imposts, which turned their commerce into the neighbouring ports, and to co-erce a relaxation of the British monopoly of the W. Indn. navigation, which was attemted by Yirga. . . . the States having ports for foreign commerce, taxed & irritated the adjoining States, trading thro’ them, as N. Y. Pena. Virga. & S-Carolina.”

The Framers of the Constitution thus sought to alleviate three main concerns by committing sole power to lay imposts and duties on imports in the Federal Government, with no concurrent state power: the Federal Government must speak with one voice when regulating commercial relations with foreign governments, and tariffs, which might affect foreign relations, could not be implemented by the States consistently with that exclusive power; import revenues were to be the major source of revenue of the Federal Government and should not be diverted to the States; and harmony among the States might be disturbed unless seaboard States, with their crucial ports of entry, were prohibited from levying taxes on citizens of other States by taxing goods merely flowing through their ports to the other States not situated as favorably geographically.

Nothing in the history of the Import-Export Clause even remotely suggests that a nondiscriminatory ad valorem property tax which is also imposed on imported goods that are no longer in import transit was the type of exaction that was regarded as objectionable by the Framers of the Constitution. For such an exaction, unlike discriminatory state taxation against imported goods as imports, was not regarded as an impediment that severely hampered commerce or constituted a form of tribute by seaboard States to the disadvantage of the other States.

It is obvious that such nondiscriminatory property taxation can have no impact whatsoever on the Federal Government’s exclusive regulation of foreign commerce, probably the most important purpose of the Clause’s prohibition. By definition, such a tax does not fall on imports as such because of their place of origin. It cannot be used to create special protective tariffs or particular preferences for certain domestic goods, and it cannot be applied selectively to encourage or discourage any importation in a manner inconsistent with federal regulation.

Nor will such taxation deprive the Federal Government of the exclusive right to all revenues from imposts and duties on imports and exports, since that right by definition only extends to revenues from exactions of a particular category; if nondiscriminatory ad valorem taxation is not in that category, it deprives the Federal Government of nothing to which it is entitled. Unlike imposts and duties, which are essentially taxes on the commercial privilege of bringing goods into a country, such property taxes are taxes by which a State apportions the cost of such services as police and fire protection among the beneficiaries according to their respective wealth; there is no reason why an importer should not bear his share of these costs along with his competitors handling only domestic goods. The Import-Export Clause clearly prohibits state taxation based on the foreign origin of the imported goods, but it cannot be read to accord imported goods preferential treatment that permits escape from uniform taxes imposed without regard to foreign origin for services which the State supplies. See, e. g., May v. New Orleans, 178 U. S. 496, 502-504, 507-509 (1900). It may be that such taxation could diminish federal impost revenues to the extent its economic burden may discourage purchase or importation of foreign goods. The prevention or avoidance of this incidental effect was not, however, even remotely an objective of the Framers in enacting the prohibition. Certainly the Court in Brown did not think so. See 12 Wheat., at 443-444. Taxes imposed after an initial sale, after the breakup of the shipping packages, or the moment goods imported for use are committed to current operational needs are also all likely to have an incidental effect on the volume of goods imported; yet all are permissible. See, e. g., Waring v. The Mayor, 8 Wall. 110 (1869) (taxation after initial sale); May v. New Orleans, supra (taxation after breakup of shipping packages); Youngstown Sheet & Tube Co. v. Bowers, 358 U. S. 534 (1959) (taxation of goods committed to current operational needs by manufacturer). What those taxes and nondiscriminatory ad valorem property taxes share, it should be emphasized, is the characteristic that they cannot be selectively imposed and increased so as substantially to impair or prohibit importation.

Finally, nondiscriminatory ad valorem property taxes do not interfere with the free flow of imported goods among the States, as did the exactions by States under the Articles of Confederation directed solely at imported goods. Indeed, importers of goods destined for inland States can easily avoid even those taxes in today’s world. Modern transportation methods such as air freight and containerized packaging, and the development of railroads and the Nation’s internal waterways, enable importation directly into the inland States. Petitioner, for example, operates other distribution centers from wholesale warehouses in inland States. Actually, a quarter of the tires distributed from petitioner’s Georgia warehouse are imported interstate directly from Canada. To be sure, allowance of nondiscriminatory ad valorem property taxation may increase the cost of goods purchased by “inland” consumers. But as already noted, such taxation is the quid pro quo for benefits actually conferred by the taxing State. There is no reason why local taxpayers should subsidize the services used by the importer; ultimate consumers should pay for such services as police and fire protection accorded the goods just as much as they should pay transportation costs associated with those goods. An evil to be prevented by the Import-Export Clause was the levying of taxes which could only be imposed because of the peculiar geographical situation of certain States that enabled them to single out goods destined for other States. In effect, the Clause was fashioned to prevent the imposition of exactions which were no more than transit fees on the privilege of moving through a State. A nondiscriminatory ad valorem property tax obviously stands on a different footing, and to the extent there is any conflict whatsoever with this purpose of the Clause, it may be secured merely by prohibiting the assessment of even nondiscriminatory property taxes on goods which are merely in transit through the State when the tax is assessed.

Admittedly, the wording of the prohibition of the Import-Export Clause does not in terms except nondiscriminatory taxes with some impact on imports or exports. But just as clearly, the Clause is not written in terms of a broad prohibition of every “tax.” The prohibition is only against States laying “Imposts or Duties” on “Imports.” By contrast, Congress is empowered to “lay and collect Taxes, Duties, Imposts, and Excises,” which plainly lends support to a reading of the Import-Export Clause as not prohibiting every exaction or “tax” which falls in some measure on imported goods. Indeed, Professor Crosskey makes a persuasive demonstration that the words “imposts” and “duties” as used in 1787 had meanings well understood to be exactions upon imported goods as imports. “Imposts” were like customs duties, that is, charges levied on imports at the time and place of importation. “Duties” was a broader term embracing excises as well as customs duties, and probably only capitation, land, and general property exactions were known by the term “tax” rather than the term “duty.” 1 W. Crosskey, Politics and the Constitution in the History of the United States 296-297 (1953). The characteristic common to both “imposts” and “duties” was that they were exactions directed at imports or commercial activity as such and, as imposed by the seaboard States under the Articles of Confederation, were purposefully employed to regulate interstate and foreign commerce and tax States situated less favorably geographically.

In any event, since prohibition of nondiscriminatory ad valorem property taxation would not further the objectives of the Import-Export Clause, only the clearest constitutional mandate should lead us to condemn such taxation. The terminology employed in the Clause — “Imposts or Duties” — is sufficiently ambiguous that we decline to presume it was intended to embrace taxation that does not create the evils the Clause was specifically intended to eliminate.

IV

The Court in Low v. Austin nevertheless expanded the prohibition of the Clause to include nondiscriminatory ad valorem property taxes, and did so with no analysis, but with only the statement that Brown v. Maryland had marked the line “where the power of Congress over the goods imported ends, and that of the State begins, with as much precision as the subject admits.” 13 Wall., at 32. But the opinion in Brown v. Maryland cannot properly be read to propose such a broad definition of “imposts” or “duties.” The tax there held to be prohibited by the Import-Export Clause was imposed under a Maryland statute that required importers of foreign goods, and wholesalers selling the same by bale or package, to obtain a license and pay a $50 fee therefor, subject to certain forfeitures and penalties for noncompliance. The importers contested the validity of the statute, arguing that the license was a “palpable evasion” of the Import-Export Clause because it was essentially equivalent to a duty on imports. They contended that asserted differences between the license fee and a tax directly imposed on imports were more formal than substantial: the privilege of bringing the goods into the country could not realistically be divorced from the privilege of selling the goods, since the power to prohibit sale would be the power to prohibit importation, 12 Wheat., at 422; the payment of the tax at the time of sale rather than at the time of importation would be irrelevant since it would still be a tax on the same privilege at either time, id., at 423; and the fact that a license operates on the person of the importer while the duty operates on the goods themselves is irrelevant in that either levy would directly increase the cost of the goods, ibid. Since the power to impose a license on importers would also entail a power to price them out of the market or prohibit them entirely, the importers concluded that such a power must be repugnant to the exclusive federal power to regulate foreign commerce, id., at 423-425.

The Attorney General of Maryland, Roger Taney, later Chief Justice, defended the constitutionality of Maryland's law. He argued that the fee was not a prohibited "impost” or “duty” because the license fee was not a tax upon the imported goods, but on the importers, a tax upon the occupation and nothing more, and the Import-Export Clause prohibited only exactions on the right of importation and not an exaction upon the occupation of importers. He contended that, in any event, the Clause, if not read as prohibiting only exactions on the right of importation, but, more broadly, as also prohibiting exactions on goods imported, would necessarily immunize imports from all state taxation at any time. Moreover, if the privilege of selling is a concomitant of the privilege of importing, the argument proved too much; the importer could sell free of regulation by the States in any place and in any manner, even importing free of regulations concerning the bringing of noxious goods into the city, or auctioning the goods in public warehouses, or selling at retail or as a traveling peddler, activities that had traditionally been subject to state regulation and taxation.

The Court in Brown refused to define "imposts” or “duties” comprehensively, since the Maryland statute presented only the question “whether the legislature of a State can constitutionally require the importer of foreign articles to take out a license from the State, before he shall be permitted to sell a bale or package so imported.” 12 Wheat., at 436. However, in holding that the Maryland license fee was within prohibited “imposts, or duties on imports . . the Court significantly characterized an impost or duty as “a custom or a tax levied on articles brought into a country," id., at 437, although also holding that, while normally levied before the articles are permitted to enter, the exactions are no less within the prohibition if levied upon the goods as imports after entry; since “imports” are the goods imported, the prohibition of imposts or duties on “imports” was more than a prohibition of a tax on the act of importation; it “extends to a duty levied after [the thing imported] has entered the country,” id., at 438. And since the power to prohibit sale of an article is the power to prohibit its introduction into the country, the privilege of sale must be a concomitant of the privilege of importation, and licenses on the right to sell must therefore also fall within the constitutional prohibition. Id., at 439.

Taney’s argument was persuasive, however, to the extent that the Court was prompted to declare that “the words of the prohibition ought not to be pressed to their utmost extent; ... in our complex system, the object of the powers conferred on the government of the Union, and the nature of the often conflicting powers which remain in the States, must always be taken into view .... [T]here must be a point of time when the prohibition ceases, and the power of the State to tax commences . . ..” Id., at 441.

The Court stated that there were two situations in which the prohibition would not apply. One was the case of a state tax levied after the imported goods had lost their status as imports. The Court devised an evidentiary tool, the “original package” test, for use in making that determination. The formula was: “It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution.” Id., at 441-442. “It is a matter of hornbook knowledge that the original package statement of Justice Marshall was an illustration, rather than a formula, and that its application is evidentiary, and not substantive . . . Galveston v. Mexican Petroleum Corp., 15 F. 2d 208 (SD Tex. 1926).

The other was the situation of particular significance to our decision of this case, that is, when the particular state exaction is not a prohibited “impost” or “duty.” The Court first stated its view of the characteristics of prohibited state levies. It said that the obvious clue was the express exception of the Import-Export Clause authorizing “imposts or duties” that “may be absolutely necessary for executing [the State’s] inspection Laws.” “[T]his exception,” said the Court, “in favour of duties for the support of inspection laws, goes far in proving that the framers of the constitution classed taxes of a similar character with those imposed for the purposes of inspection, with duties on imports and exports, and supposed them to be prohibited.” 12 Wheat., at 438 (.emphasis supplied). The characteristic of the prohibited levy, the Court said later in the opinon — illustrated by the Maryland license tax — was that “the tax intercepts the import, as an import, in its way to become incorporated with the general mass of property, and denies it the privilege of becoming so incorporated until it shall have contributed to the revenue of the State.” Id., at 443 (emphasis supplied). The Court illustrated the kinds of state exactions that in its view fell without the prohibition as examples of neutral and nondiscriminatory taxation: a tax on itinerant peddlers, a service charge for the use of a public auctioneer, a property tax on plate or furniture personally used by the importer. These could not be considered within the constitutional prohibition because they were imposed without regard to the origin of the goods taxed. Id., at 443, 444. In contrast, the Maryland exaction in question was a license fee which singled out imports, and therefore was prohibited because “the tax intercepts the import, as an import, in its way to become incorporated with the general mass of property.” Id., at 443. (Emphasis supplied.)

Thus, it is clear that the Court's view in Brown was that merely because certain actions taken by the importer on his imported goods would so mingle them with the common property within the State as to “lose their distinctive character as imports” and render them subject to the taxing power of the State, did not mean that in the absence of such action, no exaction could be imposed on the goods. Rather, the Court clearly implied that the prohibition would not apply to a state tax that treated imported goods in their original packages no differently from the “common mass of property in the country”; that xs, treated it in a manner that did not depend on the foreign origins of the goods.

Despite the language and objectives of the Import-Export Clause, and despite the limited nature of the holding in Brown v. Maryland, the Court in Low v. Austin ignored the warning that the boundary between the power of States to tax persons and property within their jurisdictions and the limitations on the power of the States to impose imposts or duties with respect to “imports” was a subtle and difficult line which must be drawn, as the cases arise. Low v. Austin also ignored the cautionary remark that, for those reasons, it “might be premature to state any rule as being universal in its application.” 12 Wheat,, at 441., Although it was “sufficient” in the context of Maryland’s license tax on the right to sell imported goods to note that a tax imposed directly on imported goods which have not been acted upon in any way would clearly fall within the constitutional prohibition, that observation did not apply, as the foregoing analysis indicates, to a state tax which treated those same goods without regard to the fact of their foreign origin.

Low v. Austin compounded the error in misreading the Brown opinion by the further error of misreading the views of Mr. Chief Justice Taney as expressed in his opinion in the License Cases, 5 How. 504 (1847) (six Justices wrote separately in the cases). As already observed, when the Chief Justice was Attorney General of Maryland he argued Brown v. Maryland for the State. He had argued that the Maryland license fee requirement fell upon the importer, not the imported goods, and therefore fell without the Import-Export Clause’s prohibition against imposts or duties on “imports.” In the License Cases he observed that “further and more mature reflection has convinced me that the rule laid down [in Brown v. Maryland] is a just and safe one, and perhaps the best that could have been adopted for preserving the right of the United States on the one hand, and of the States on the other, and preventing collision between them. The question, I have already said, was a very difficult one for the judicial mind. In the nature of things, the line of division is in some degree vague and indefinite, and I do not see how it could be drawn more accurately and correctly, or more in harmony with the obvious intention and object of this provision in the constitution. Indeed, goods imported, while they remain in the hands of the importer, in the form and shape in which they were brought into the country, can in no just sense be regarded as a part of that mass of property in the State usually taxed for the support of the State government.” 5 How., at 575.

Low v. Austin quoted this excerpt, 13 Wall., at 33-34, as supporting the holding, id., at 34, that “a tax upon [imported goods], in any shape, is within the constitutional prohibition.” But Mr. Chief Justice Taney said much more in his opinion in the License Cases, and what he said further makes crystal clear that the prohibition applied only to state exactions upon imports as imports and did not apply to nondiscriminatory ad valorem property taxes. For, continuing his analysis in the very paragraph from which Low v. Austin excerpted only a part, he concluded: “A tax in any shape . . . cannot be done directly, in the shape of a duty on imports, for that is expressly prohibited. And as it cannot be done directly, it could hardly be a just and sound construction of the constitution which would enable a State to accomplish precisely the same thing under another name, and in a different form.” 5 How., at 576 (emphasis supplied). The Chief Justice then went on to distinguish an exaction upon imports as imports from property taxes indiscriminately applied to all owners of property, stating, ibid.:

"Undoubtedly a State may impose a tax upon its citizens in proportion to the amount they are respectively worth; and the importing merchant is liable to this assessment like any other citizen, and is chargeable according to the amount of his property, whether it consists of money engaged in trade, or of imported goods which he proposes to sell, or any other property of which he is the owner. But a tax of this description stands upon a very-different footing from a tax on the thing imported, while it remains a part of foreign commerce, and is not introduced into the general mass of property in the State.” (Emphasis supplied.)

Thus Mr. Chief Justice Taney’s opinion is authority, precisely contrary to the reading of Low v. Austin, that nondiscriminatory ad valorem property taxes are not prohibited by the Import-Export Clause.

It follows from the foregoing that Low v. Austin was wrongly decided. That decision therefore must be, and is, overruled.

V

Petitioner’s tires in this case were no longer in transit. They were stored in a distribution warehouse from which petitioner conducted a wholesale operation, taking orders from franchised dealers and filling them from a constantly replenished inventory. The warehouse was operated no differently than would be a distribution warehouse utilized by a wholesaler dealing solely in domestic goods, and we therefore hold that the nondiscriminatory property tax levied on petitioner’s inventory of imported tires was not interdicted by the Import-Export Clause of the Constitution. The judgment of the Supreme Court of Georgia is accordingly

Affirmed.

Mr. Justice Stevens took no part in the consideration or decision of this case.

Mr. Justice White,

concurring in the judgment.

Being of the view that the goods involved here had lost their character as imports and that subjecting them to ad valorem taxation was consistent with the Constitution as interpreted by prior cases, including Low v. Austin, 13 Wall. 29 (1872), I would affirm the judgment. There is little reason and no necessity at this time to overrule Low v. Austin. None of the parties has challenged that case here, and the issue of its overruling has not been briefed or argued.

       Petitioner’s complaint conceded the taxability of certain passenger tubes that had been removed from the original shipping cartons. These had a value of $633.92 on the assessment date January 1, 1972, and of $664.22 on the assessment date January 1, 1973. The tax for 1972 on the tubes was $8.03 and for 1973 was $8.73.

       The respondents did not cross-petition from the affirmance of the holding of the Superior Court that the tubes in the corrugated shipping cartons were immune from the tax, and that holding is therefore not before us for review.

       Madison noted the States’ aversion to the transfer of power to a central government “notwithstanding the urgent demands of the Federal Treasury; the glaring inadequacy of the authorized mode of supplying it, the rapid growth of anarchy in the Fedl. System, and the animosity kindled among its members by their conflicting regulations.” 3 Farrand 544. See also, e. g., 1 id., at 19 (Mr. Randolph’s comments concerning defects of Articles of Confederation); id., at 462 (Mr. Ghorum, in explaining why small States should not object to the formation of the Union, notes: “Should a separation of the States take place, the fate of N. Jersey wd. be worst of all. She has no foreign commerce & can have but little. Pa. & N. York will continue to levy taxes on her consumption”); 3 id., at 328-329 (Mr. Madison’s remarks during debate at the Virginia Convention).

       See, e. g., Brown v. Maryland, 12 Wheat. 419, 439 (1827); Cook v. Pennsylvania, 97 U. S. 566, 574 (1878); Youngstown Sheet & Tube Co. v. Bowers, 358 U. S. 534, 555-556 (1959) (Frankfurter, J., dissenting); The Federalist Nos. 11 (Hamilton), 12 (Hamilton), 42 (Madison), 44 (Madison); 2 Farrand 135, 157-158, 169 (notes of Committee of Detail); id., at 441; 3 id., at 520-521 (letter of James Madison to Professor Davis); id., at 547-548.

       See, e. g., Brown v. Maryland, supra, at 439; Youngstown Sheet & Tube Co. v. Bowers, supra, at 556 (Frankfurter, J., dissenting) ; The Federalist No. 12.

       See, e. g., Brown v. Maryland, supra, at 440; Cook v. Pennsylvania, supra, at 574; Youngstown Sheet & Tube Co. v. Bowers, supra, at 545; id., at 556-557 (Frankfurter, J., dissenting); 2 Farrand 441-442, 589 ; 3 id., at 519 (letter of James Madison to Professor Davis).

       Of course, discriminatory taxation in such circumstances is not inconceivable. For example, a State could pass a law which only taxed the retail sale of imported goods, while the retail sale of domestic goods was not taxed. Such a tax, even though operating after an “initial sale” of the imports would, of course, be invalidated as a discriminatory imposition that was, in practical effect, an impost. Nothing in the opinion in Brown v. Maryland should suggest otherwise. The Court in Brown merely presumed that at these later stages of commercial activity, state impositions would not be discriminatory. But merely because Brown would have authorized a nondiscriminatory charge on even an importer’s use of the services of a public auctioneer, see 12 Wheat., at 443, does not mean that it would have disapproved the holding of Cook v. Pennsylvania, 97 U. S. 566 (1878), which invalidated a tax on the sale of goods by auction that discriminated against foreign goods.

       Of course, depending on the relevant competition from domestic goods, an importer may be forced to absorb some of these ad valorem property assessments rather than passing them on to consumers.

        Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299 (1852), upheld pilotage fees imposed by the city of Philadelphia. It expressly rejected the argument that these fees were prohibited "imposts or duties,” id., at 314:
      "[The Import-Export Clause] was intended to operate upon subjects actually existing and well understood when the constitution was formed. Imposts and duties on imports, exports, and tonnage were then known to the commerce of a civilized world to be as distinct from fees and charges for pilotage, and from the penalties by which commercial States enforced their pilot-laws, as they were from charges for wharfage or towage, or any other local port-charges for services rendered to vessels or cargoes; and to declare that such pilot-fees or penalties are embraced within the words imposts or duties on imports, exports, or tonnage, would be to confound things essentially different, and which must have been known to be actually different by those who used this language. It cannot be denied that a tonnage duty, or an impost on imports or exports, may be levied under the name of pilot dues or penalties; and certainly it is the thing, and not the name, which is to be considered. But, having previously stated that, in this instance, the law complained of does not pass the appropriate line which limits laws for the regulation of pilots and pilotage, the suggestion, that this law levies a duty on tonnage or on imports or exports, is not admissible; and, if so, it also follows, that this law is not repugnant to the first clause of the eighth section of the first article of the constitution, which declares that all duties, imposts, and excises shall be uniform throughout the United States; for, if it is not to be deemed a law levying a duty, impost, or excise, the want of uniformity throughout the United States is not objectionable. Indeed, the necessity of conforming regulations of pilotage to the local peculiarities of each port, and the consequent impossibility of having its charges uniform throughout the United States, would be sufficient of itself to prove that they could not have been intended to be embraced within this clause of the constitution; for it cannot be supposed uniformity was required, when it must have been known to be impracticable.”
      Such fees, of course, would nevertheless likely increase the cost of the goods being imported. Thus more than a mere cost impact on imported goods is required before an exaction can be deemed to fall within the Clause’s prohibition.

       See, e. g., License Cases, 5 How. 504, 575-576 (1847) (Taney, C. J.).

       Such an assessment would also be invalid under traditional Commerce Clause analysis.

       In 2 Farrand 305, the following is reported as having occurred during the debate on the last draft of the Tax Clause submitted by the Committee of Detail:
      “Mr. L. Martin asked what was meant by the Committee of detail (in the expression) ‘duties’ and ‘imposts.’ If the meaning were the same, the former was unnecessary; if different, the matter ought to be made clear.
      “Mr. Wilson, duties are applicable to many objects to which the word imposts does not relate. The latter are appropriated to commerce; the former extend to a variety of objects, as stamp duties &c.”
      Subsequently, Mr. Martin also stated in his “Genuine Information” delivered to the Maryland Legislature, see 3 Farrand 203-204:
      “By the eighth section of this article, Congress is to have power to lay and collect taxes, duties, imposts, and excises. When we met in convention after our adjournment, to receive the report of the committee of detail, the members of that committee were requested to inform us, what powers were meant to be vested in Congress by the word duties in this section, since the word imposts extended to duties on goods imported, and by another part of the system no duties on exports were to be laid. In answer to this inquiry, we were informed, that it was meant to give the general government the power of laying stamp duties on paper, parchment, and vellum. . . . By the power to lay and collect imposts, they may impose duties on any or every article of commerce imported into these States, to what amount they please. By the power to lay excises, a power very odious in its nature, since it authorizes officers to go into your houses, your kitchens, your cellars, and to examine into your private

        concerns, the Congress may impose duties on every article of use or consumption, — on the food that we eat, on the liquors we drink, on the clothes that we wear, the glass which enlightens our houses, or the hearths necessary for our warmth and comfort. By the power to lay and collect taxes, they may proceed to direct taxation on every individual, either by a capitation tax on their heads, or an assessment on their property. By this part of the section therefore, the government has power to lay what duties they please on goods imported; to lay what duties they please, afterwards, on whatever we use or consume; to impose stamp duties to what amount they please, and in whatever case they please; afterwards to impose on the people direct taxes, by capitation tax, or by assessment, to what amount they choose . . .
      A similar recognition that commercial “imposts” do not encompass property “taxes” appears in The Federalist No. 12, pp. 80-81, 84 (Bourne ed. 1947):
      “It is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation. Tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the States have remained empty. The popular system of administration inherent in the nature of popular government, coinciding with the real scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them.
      “No person acquainted with what happens in other countries will be surprised at this circumstance. In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. Duties on imported articles form a large branch of this latter description.
      “In America, it is evident that we must a long time depend for the means of revenue chiefly on such duties. In most parts of it, excises must be confined within a narrow compass. The genius of the people will ill brook the inquisitive and peremptory spirit of excise laws. The pockets of the farmers, on the other hand, will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands; and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the imperceptible agency of taxes on consumption.
      “... A nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. This is an. extremity to which no government will of choice accede. Revenue, therefore, must be had at all events. In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. It has been already intimated that excises, in their true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation; nor, indeed, in the States where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. Personal estate (as has been before remarked), from - the difficulty in tracing it, cannot be subjected to large contributions, by any other means than by taxes on consumption.”
      See also, e. g., The Federalist Nos. 30, 32,35, 36; T. Cooley, The General Principles of Constitutional Law in the United States c. V, § 3, c. VII, § 14 (Bruce ed. 1931); 2 J. Story, Commentaries on the Constitution of the United States §§ 946-950, 954, 1013-1014 (1833); n. 9, supra.

       In another context, this Court said that “[i]n view of the fact that the Constitution gives Congress authority to consent to state taxation of imports and hence to lay down its own test for determining when the immunity ends, we see no convincing practical reason for abandoning the test which has been applied for more than a century Hooven & Allison Co. v. Evatt, 324 U. S. 652, 668 (1945). However, this overlooked the fact that the Import-Export Clause contains a provision that “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 . . . Although the Constitutional Convention had refused to make the Import-Export Clause’s prohibition of state exactions absolute, it immediately added that proviso, which Mr. Madison supported “as preventing all State imposts.” 2 Farrand 441-442. See also, e. g., 3 id., at 215-216 (Luther Martin’s “Genuine Information”). Of course, Congress presumably could enact other legislation transferring the funds back to the States after they were put to “the Use of the Treasury of the United States.” But may Congress consent to state exactions if they are not uniform throughout the United States, since any congressional taxation must conform to the mandate of Art. I, § 8, cl. 1, that “all Duties, Imposts, and Excises shall be uniform throughout the United States”? If Congress may authorize, under the Import-Export Clause, an exaction that it could not directly impose under the Tax Clause, would that not permit Congress to undermine the policies which both Clauses were fashioned to secure? Since, however, we hold that Low v. Austin
        was not properly decided, there is no occasion to address the question whether Congress could have constitutionally consented to state nondiscriminatory ad valorem property taxes if they had been within the prohibition of the Import-Export Clause.