This was an action against the City of Chicago, Illinois, to
recover the sum of $300 paid by the plaintiff on compulsion, and
under protest, for licenses for twelve steam tugs of which he was
the manager and owner. The action was commenced in the Court of
Appeals of Cook County, Illinois, and was tried by the court
without the intervention of a jury, by stipulation of parties. At
the trial, the plaintiffs put in evidence the following agreed
statement of facts:
Page 147 U. S. 397
"It is hereby stipulated and agreed that for the purposes of
determining the right of the defendant to require of the plaintiff
a license, and to impose and collect a fine or license fee
therefor, under an ordinance of the said defendant hereinafter set
forth, the following are the ultimate facts under which the said
license was required, and the fine or license fee imposed and
collected,
viz.: That on the 26th day of September, 1888,
the said plaintiff was the owner and manager of the following steam
tugs,
viz.: Tom Brown, F. S. Butler, J. H. Hackley, C. W.
Parker, Bob Teed, A. B. Ward, W. H. Wolf, Crawford, G. B.
McClellan, Mary McLane, Success, and
Wahbun. That
said tugs, and each of them, were of twenty tons burden and
upwards, and were on the said date, and for long time prior thereto
had been, enrolled and licensed for the coasting trade, in
pursuance of, and under the provisions of, Title L of the Revised
Statutes of the United States, to which reference is hereby made
and which are made a part hereof. That prior to the date aforesaid,
and on the 5th day of March, 1883, the Common Council of said City
of Chicago, acting under the power supposed to be vested in it by
chapter 24 of the Revised Statutes of the Illinois, and under which
the said city was at said time incorporated, passed and enacted an
ordinance regulating the navigation of steam tugs and other vessels
on Chicago River and Lake Michigan and the waters tributary
thereto, requiring that the owner thereof take out a license
therefor and imposing upon him a fine or penalty for failing so to
do, which said ordinance is in the words and figures
following:"
"Be it ordained by the city council of the City of Chicago:"
"SEC. 1. No person or persons shall keep, use, or let for hire
any tug or steam barge or towboat, for towing vessels or craft in
the Chicago River, its branches or slips connecting therewith,
without first obtaining a license therefor in the manner and way
hereinafter mentioned."
"SEC. 2. All applications for such license shall be made to the
mayor, and upon payment of twenty-five ($25) dollars to the city
collector a license shall be issued for the period of one year by
the city clerk for such tug or steam barge or
Page 147 U. S. 398
towboat, and it shall be the duty of the city clerk to keep a
register of the name of the person to whom such license is granted
or transferred, the day when issued or transferred, the number of
the license, and the name and description of the tug so
licensed."
"SEC. 3. Every tug or steam barge or towboat shall have the
number of the license and the name of the owner marked on both
sides of such tug or steam barge or towboat in plain legible
figures and letters."
"SEC. 4. Any individual or person violating any provisions of
this ordinance shall be subject to a fine of not less than five
dollars ($5) nor more than fifty dollars ($50) for each
offense."
"SEC. 5. This ordinance shall be in force from and after its
passage."
"That said steam tugs were enrolled and licensed in the manner
and for the purpose aforesaid by the United States authorities in
and at the Northern District of Illinois, in which the said
defendant, the said City of Chicago, is situated, and were on the
26th day of September, 1888, and for a long time prior thereto had
been engaged, in the coasting and foreign trade, and in commerce
and navigation, namely, in towing vessels engaged in interstate
commerce into and out of the Chicago River and harbor from and to
said Lake Michigan, and, in pursuance of the conduct of the said
trade, were navigating the said Chicago River and the waters of
Lake Michigan, and the tributaries thereto, which said river is
from time to time deepened for navigation purposes by dredging,
under the direction and at the expense of said City of
Chicago."
"That on the said day, the said City Collector of the said City
of Chicago, the defendant herein, notified the said plaintiff to
apply for and take out a license in pursuance of the requirements
of the said ordinance for each of said steam tugs, and to pay
therefor the sum of twenty-five dollars for each of said tugs, or
the sum of three hundred dollars in the aggregate. That the said
plaintiff thereupon notified the said collector that the said steam
tugs, and each of them, were licensed for the coasting trade, in
pursuance, of, and in accordance with, the requirements of the laws
of the said United
Page 147 U. S. 399
states, and were engaged in said trade on the said Chicago River
and said Lake Michigan, and the waters tributary thereto, in the
manner as aforesaid, and thereupon claimed to the said collector
that the said ordinance was invalid, and that the said City of
Chicago had no power or authority to require the said plaintiff to
take out a license in pursuance of the requirements of the said
ordinance, or to pay the said fee, whereupon the said collector of
the said defendant caused the said plaintiff to be arrested upon a
warrant issued for that purpose, and that while the said plaintiff
was under arrest, he paid the said license fee under protest and
took out the license, as required by the said ordinance and as
demanded of him by the said collector, which said license was
thereupon issued to him."
"That the amount of the fees so as aforesaid paid to the said
collector for the said defendant was the sum of three hundred
dollars. That the said sum was paid by the said collector into the
treasury of the said defendant, the said City of Chicago, and that
the questions which arise on the foregoing state of facts are as
follows,
viz.:"
"1st. Whether or not the said defendant can require the
plaintiff to take out the license and collect therefor the fees
provided for in the ordinance aforesaid."
"2. Whether there was vested in the defendant the power to
require of the plaintiff the license and fee provided for in the
ordinance aforesaid, and in the manner shown by the foregoing state
of facts."
"3. Whether the said ordinance under which was license was
required, and the said fee was imposed and collected, is legal and
binding upon the plaintiff."
"4. Whether the plaintiff is not entitled to judgment for the
amount of fees so paid by him as aforesaid."
"It is hereby further stipulated that the said facts may be
presented to the court and tried under the pleadings as they now
stand, and that an order may be entered in said suit submitting the
same to the Honorable Richard S. Tuthill for trial without the
intervention of a jury, and that either party shall have the right
to appeal from the decision and final judgment of the court herein
in the same manner and to the same extent
Page 147 U. S. 400
as they would have if the same case had been tried in the usual
and ordinary way."
And there was also introduced in evidence on behalf of the
defendant in error an ordinance of the City Council of the City of
Chicago, in the words and figures as follows:
"SEC 1. The inhabitants of all that district of country in the
County of Cook and State of Illinois contained within the limits
and boundaries hereinafter prescribed shall be a body politic,
under the name and style of the City of Chicago, and by that name
sue and be sued, complain and defend, in any court, make and use a
common seal, and alter at pleasure and take and hold, purchase,
lease, and convey such real and personal or mixed estate as the
purposes of the corporation may require, within or without the
limits aforesaid."
"SEC. 2. The corporate limits and jurisdiction of the City of
Chicago shall embrace and include within the same all of township
thirty-nine north, range fourteen east of the third principal
meridian, and all of sections thirty-one, thirty-two, thrity-three,
and fractional section thirty-four, in township forth north, range
fourteen east of the third principal meridian, together with so
much of the waters and bed of Lake Michigan as lies within one mile
of the shore thereof, and east of the territory aforesaid."
"SEC. 3. All that portion of the aforesaid territory lying north
of the center of the main Chicago River, and east of the center of
the north branch of said river, shall constitute the north division
of said city; all that portion of the aforesaid territory lying
south of the center of the main Chicago River and south and east of
the center of the south branch of said river and of the Illinois
and Michigan Canal shall constitute the south division of said
city, and all that portion of the aforesaid territory lying west of
the center of the north and south branches of said river and of the
Illinois and Michigan Canal shall constitute the west division of
said city."
On the trial of the case, the issues were found for the
defendant. Thereupon an appeal was taken to the Appellate Court for
the First District of the State of Illinois, and there, without
argument, the judgment was affirmed and then an appeal was
Page 147 U. S. 401
taken by the plaintiff to the supreme court of the state. Upon a
hearing before that court, the judgment of the court below was
reversed, and the ordinance of the city declared to be invalid, but
upon a petition, a rehearing was granted, and the case was
reargued. After such reargument the judgment previously rendered by
the court was set aside, and the judgment of the appellate court
was affirmed. The plaintiff thereupon brought the case to this
Court upon a writ of error.
Page 147 U. S. 404
MR. JUSTICE FIELD, after stating the facts, delivered the
opinion of the Court.
The question presented for determination is the validity of the
ordinance of the City of Chicago exacting a license from the
plaintiff for the privilege of navigating the Chicago River and its
branches by tugboats owned and controlled by him. The Chicago River
is a navigable stream, and its waters connect with the harbor of
Chicago, and the vessels navigating the river and harbor have
access by them to Lake Michigan, and the states bordering on the
lake and connecting lakes and rivers. The tugs in question, from
the owner of which the license fees were exacted, were enrolled and
licensed in the coasting trade of the United States under the
provisions of the Revised Statutes prescribing the conditions of
such license and enrollment. The license is in the form contained
in section 4321 of the Revised Statutes, in Title L, under the head
of "The Regulations of Vessels in Domestic Commerce." It declares
that William Harmon, managing owner, of Chicago, having given bond
that the steam tug (naming it and her tonnage) shall not be
employed in any trade while this license shall continue in force
whereby the revenue of the United States shall be defrauded, and
having also sworn that this license shall not be used for any other
vessel nor for any other employment than therein specified, the
license is thereby granted for such steam tug (naming it) to be
employed in carrying on the coasting and foreign trade for one year
from the date thereof. The license is given by the collector of
customs of the district, under his hand and seal. The licenses for
the several tugs were in this form, differing from each other only
in the name of the tug licensed, and its tonnage. The licenses
confer a right upon the owner of the steam tugs to navigate with
them the rivers and the waters of the United States for one year,
which includes the river and harbor of Chicago, Lake Michigan, and
connecting rivers and lakes. It appears from the record that at the
time the license fees in controversy were exacted these tugs were
actually engaged in the coasting and foreign trade, and in towing
vessels engaged in interstate commerce
Page 147 U. S. 405
from Lake Michigan to the Chicago River and its branches and in
towing vessels similarly engaged from the river into the lake.
In
Gibbons v.
Ogden, 9 Wheat. 210, this Court held that vessels
enrolled and licensed pursuant to the laws of the United States, as
these tugs were, had conferred upon them as full and complete
authority to carry on this trade as it was in the power of Congress
to confer.
The language of the Court in that case, respecting the first
section of the act then under consideration, is equally applicable
to the provisions of section 4311 of Title L of the Revised
Statutes. This latter section declares that
"vessels of twenty tons and upward, enrolled in pursuance of
this title, and having a license in force, or vessels of less than
twenty tons, which, although not enrolled, have a license in force,
as required by this title, and no others, shall be deemed vessels
of the United States, entitled to the privileges of vessels
employed in the coasting trade or fisheries."
The first section of the act mentioned in
Gibbons v.
Ogden is substantially the same as the above section 4311;
and, referring to the privileges conferred by it, the Court
said:
"These privileges cannot be separated from the trade and cannot
be enjoyed unless the trade may be prosecuted. The grant of the
privilege is an idle, empty form, conveying nothing, unless it
convey the right to which the privilege is attached, and in the
exercise of which its whole value consists. To construe these words
otherwise than as entitling the ships or vessels described to carry
on the coasting trade would be, we think, to disregard the apparent
intent of the act."
The business in which the tugs of the plaintiff were engaged is
similar to that of the vessels mentioned in
Foster v.
Davenport, 22 How. 244. In that case, a steamboat
was employed as a lighter and towboat in waters in the State of
Alabama. It was therefore insisted that she was engaged exclusively
in domestic trade and commerce, and consequently the case could be
distinguished from the preceding one of
Sinnot
v. Davenport, 22 How. 227, argued with it, in which
a law of Alabama, passed in 1854, requiring the owners of
steamboats navigating
Page 147 U. S. 406
the waters of the state, before leaving the port of Mobile, to
file a statement, in writing, in the office of the probate judge of
Mobile County, setting forth the name of the vessel, the name of
the owner or owners, his or their place or places of residence, and
the interest each had in the vessel, was held to be in conflict
with the Act of Congress passed in February, 1793, so far as the
state law was brought to bear upon a vessel which had taken out a
license, and was duly enrolled under the act of Congress for
carrying on the coasting trade. But Mr. Justice Nelson, speaking
for the Court, replied as follows:
"It is quite apparent from the facts admitted in the case that
this steamboat was employed in aid of vessels engaged in the
foreign or coastwise trade and commerce of the United States either
in the delivery of their cargoes or in towing the vessels
themselves to the port of Mobile. The character of the navigation
and business in which it was employed cannot be distinguished from
that in which the vessels it towed or unloaded were engaged. The
lightering or towing was but the prolongation of the voyage of the
vessels, assisted to their port of destination. The case therefore
is not distinguishable in principle from the one above referred
to."
In the present case, a neglect or refusal of the owner of the
tugs to pay the license required by the ordinance subjects him to
the imposition of a fine. His only alternative is to pay the fine,
or the use of his tugs in their regular business will be stopped.
Of course the ordinance, if constitutional and operative, has the
effect to restrain the use of the vessels in the legitimate
commerce for which they were expressly licensed by the United
States. It would be a burden and restraint upon that commerce,
which is authorized by the United States and over which Congress
has control. No state can interfere with it or put obstructions
upon it without coming in conflict with the supreme authority of
Congress. The requirement that every steam tug, barge, or towboat
towing vessels or craft for hire in the Chicago River or its
branches shall have a license from the City of Chicago is
equivalent to declaring that such vessels shall not enjoy the
privileges conferred by the United States except upon the
conditions imposed by the
Page 147 U. S. 407
city. This ordinance is therefore plainly and palpably in
conflict with the exclusive power of Congress to regulate commerce,
interstate and foreign. The steam tugs are not confined to any one
particular locality, but may carry on the trade for which they are
licensed in any of the ports and navigable rivers of the United
States. They may pass from the river and harbor of Chicago to any
port on Lake Michigan, or other lakes and rivers connected
therewith. As justly observed by counsel, the citizen of any of the
states bordering on the lakes who, with his tugboat, also enrolled
and licensed for the coasting trade, may wish to tow his or his
neighbor's vessel, must, according to the ordinance, before he can
tow it into Chicago River or any of its branches, obtain a license
from the City of Chicago to do so. The license of the United States
would be insufficient to give him free access to those waters.
In
Moran v. New Orleans, 112 U. S.
69,
112 U. S. 74, a
law of Louisiana authorized the City of New Orleans to levy and
collect a license upon all persons pursuing any trade, profession,
or calling, and to provide for its collection, and the council of
that city passed an ordinance to establish the rate of licenses for
professions, callings, and other business for the year 1880, and
among others provided that every member of a firm or company, other
agency, person, or corporation, owning and running towboats to and
from the Gulf of Mexico should pay a license fee of $500. The owner
of two steam propellers, measuring over 100 tons, duly enrolled and
licensed at the port of New Orleans, under the law of the United
States for the coasting trade, employed them as tugboats in taking
vessels from the sea up the river to New Orleans and from that port
to the sea. The City of New Orleans brought an action against him
to recover the license under the ordinance, and obtained a judgment
in its favor, which on appeal was affirmed by the supreme court of
the state. Being brought to this Court, the judgment was reversed
with directions to the court below to dismiss the action of the
city. In deciding the case, this Court, speaking by Mr. Justice
Matthews, said of the license exacted:
"It is a charge explicitly made as
Page 147 U. S. 408
the price of the privilege of navigating the Mississippi River
between New Orleans and the Gulf, in the coastwise trade, as the
condition on which the State of Louisiana consents that the boats
of the plaintiff in error may be employed by him according to the
terms of the license granted under the authority of Congress. The
sole occupation sought to be subjected to the tax is that of using
and enjoying the license of the United States to employ these
particular vessels in the coasting trade, and the state thus seeks
to burden with an exaction, fixed at its own pleasure, the very
right to which the plaintiff in error is entitled under, and which
he derives from, the Constitution and laws of the United States.
The Louisiana statute declares expressly that if he refuses or
neglects to pay the license tax imposed upon him for using his
boats in this way, he shall not be permitted to act under and avail
himself of the license granted by the United States, but may be
enjoined from so doing by judicial process. The conflict between
the two authorities is direct and express. What the one declares
may be done without the tax the other declares shall not be done
except upon payment of the tax. In such an opposition, the only
question is which is the superior authority? And, reduced to that,
it furnishes its own answer."
In the light of these decisions, and many others to the same
effect might be cited, there can be no question as to the
invalidity of the ordinance under consideration unless its validity
can be found in the alleged expenditures of the City of Chicago in
deepening and improving the river. It is upon such alleged ground
that the court below sustained the judgment and upheld the validity
of the ordinance, and it is upon that ground that it is sought to
support the judgment in this Court.
The decisions of this Court in
Huse v. Glover,
119 U. S. 543, and
in
Sands v. Manistee River Improvement Co., 123 U.
S. 288, are particularly referred to and relied upon.
The attempt is made to assimilate the present case to those cases
from the fact that it is conceded that the Chicago River is from
time to time deepened for navigation purposes by dredging, under
the direction and at the expense of the city. The license fee
provided
Page 147 U. S. 409
for in the ordinance of the city is treated as in the nature of
a toll or compensation for the expenses of deepening the river. But
the plain answer to this position is that the license fee is not
exacted upon any such ground, nor is any suggestion made that any
special benefit has arisen or can arise to the tugs in question by
the alleged deepening of the river. The license is not exacted as a
toll or compensation for any specific improvement of the river of
which the steam barges or tugs have the benefit, but is exacted for
the keeping, use, or letting to hire of any steam tug or barge or
tow boat for towing vessels or craft in the Chicago River, its
branches, or slips connected therewith. The business of the steam
barge or tow boat is to aid the movement of vessels in the river
and its branches and adjacent waters -- that is, to aid the
commerce in which such vessels are engaged.
As said by this Court in
Foster v.
Davenport, 22 How. 244, from which we have quoted
above, the character of the navigation and business in which the
steam barges or tugboats are employed cannot be distinguished from
that in which the vessels towed are engaged. In
Huse v.
Glover, 119 U. S. 543, the
Legislature of Illinois had, by various acts, adopted measures for
improving the navigation of the Illinois River, including the
construction of a lock and dam at two places on the river, and for
that purpose created a board of canal commissioners and invested
them with authority to superintend the construction of the locks
and canals, to control and manage them after their construction,
and to prescribe reasonable rates of toll for the passage of
vessels through the locks. The works were constructed at an expense
of several hundred thousand dollars, which was borne principally by
the state, although the United States bore a part of it, sufficient
to testify to their consent and approval of the work, and the
commissioners prescribed rates of toll for the passage of vessels
through the locks, the rates being fixed per ton according to the
tonnage measurement of the vessels and the amount of freight
carried. Certain parties engaged in the ice trade, and employing
several vessels in transporting ice on the river, and thence by the
Mississippi and other navigable streams to St. Louis and other
Page 147 U. S. 410
southern markets, all of which vessels were licensed and
registered under the act of Congress, filed a bill alleging that
prior to the construction of the dams the complainants were able to
navigate the river without interruption, except such as was
incident to the ordinary use of the channel in its natural state;
that said dams were an impediment to the free navigation of the
river; that for the construction of the locks they were charged and
paid duties upon the tonnage measurement of their steamboats and
other vessels amounting to about $5,000, and that similar charges
would be made upon subsequent shipments. And the bill alleged that
the imposition of the tolls and tonnage duties was in violation of
Article 4 of the ordinance for the government of the Territory of
the United States northwest of the Ohio River, passed July 13,
1787, which provides
"that the navigable waters leading into the Mississippi and St.
Lawrence, and the carrying places between the same, shall be a
common highway, and forever free as well to the inhabitants of the
territory as to citizens of the United States, and those of any
other state that may be admitted into the confederacy, without any
tax, impost, or duty therefor,"
and of the article of the Constitution prohibiting the
imposition of a tonnage duty by any state without the consent of
Congress. The bill therefore prayed that the canal commissioners
and persons acting under them might be restrained from exacting any
tonnage duties or other charges for the passage of their steamboats
or barges and other vessels used by them in navigating the Illinois
River, and from interfering in any manner with the free navigation
of the river in the course of their business. The circuit court of
the United States sustained the validity of the statute, and this
Court affirmed its judgment. In its opinion, this Court said:
"The exaction of tolls for passage through the locks is as
compensation for the use of artificial facilities constructed, not
as an impost upon the navigation of the stream. The provision of
the clause that the navigable streams should be highways without
any tax, impost, or duty has reference to their navigation in their
natural state. It did not contemplate that such navigation might
not be improved by artificial means, by
Page 147 U. S. 411
the removal of obstructions, or by the making of dams for
deepening the waters, or by turning into the rivers waters from
other streams to increase their depth. For outlays caused by such
works, the state may exact reasonable tolls. They are like charges
for the use of wharves and docks constructed to facilitate the
landing of persons and freight, and the taking them on board, or
for the repair of vessels."
"The state is interested in the domestic as well as in the
interstate and foreign commerce conducted on the Illinois River,
and to increase its facilities, and thus augment its growth, it has
full power. It is only when, in the judgment of Congress, its
action is deemed to encroach upon the navigation of the river as a
means of interstate and foreign commerce that that body may
interfere and control of supersede it. If, in the opinion of the
state, greater benefit would result to her commerce by the
improvements made than by leaving the river in its natural state,
and on that point the state must necessarily determine for itself,
it may authorize them although increased inconvenience and expense
may thereby result to the business of individuals. The private
inconvenience must yield to the public good."
We adhere to the doctrine thus declared. It was not new when
stated in the case mentioned. It had been often announced, though
perhaps not with as much fullness. That case differs essentially
from the one before us. It pointed out distinctly the nature of the
improvement. The benefit which it extended to vessels was readily
perceptible, and no principle was violated, and no control of
Congress over commerce, interstate or foreign, was impaired
thereby. Congress, by its contribution to the work, had assented to
it. The navigation of the river was improved and facilitated, and
those thus benefited were required to pay a reasonable toll for the
increased facilities afforded. Nothing of this kind is mentioned
for consideration in the ordinance of Chicago. The license fee is a
tax for the use of navigable waters, not a charge by way of
compensation for any specific improvement. The grant to the city
under which the ordinance was passed is a general one to all
municipalities of the state. Waters navigable in
Page 147 U. S. 412
themselves in a state, and connecting with other navigable
waters so as to form a waterway to other states or foreign nations,
cannot be obstructed or impeded so as to impair, defeat, or place
any burden upon a right to their navigation granted by Congress.
Such right the defendants had, from the fact that their steam
barges and towboats were enrolled and licensed, as stated, under
the laws of the United States.
The case of
Sands v. Manistee River Improvement Co.,
123 U. S. 288,
does not have any bearing upon the case under consideration. The
Manistee River is wholly within the State of Michigan, and its
improvement consisted in the removal of obstacles to the floating
of logs and lumber down the stream, principally by the cutting of
new channels at different points, and confining the waters at other
points by embankments. The statute under which the improvement
company was organized contained various provisions to secure a
careful consideration of the improvements proposed, and of their
alleged benefit to the public, and, if adopted, their proper
construction, and also for the establishment of tolls to be charged
for their use. When the case came before this Court, it was held
that the internal commerce of a state -- that is, the commerce
which is wholly confined within its limits -- is as much under its
control as foreign or interstate commerce is under the control of
the general government, and to encourage the growth of that
commerce and render it safe, states might provide for the removal
of obstructions from their rivers and harbors, and deepen their
channels and improve them in other ways, and levy a general tax or
toll upon those who use the improvements to meet their cost,
provided the free navigation of the waters, as permitted by the
laws of the United States, was not impaired, and provided any
system for the improvement of their navigation, instituted by the
general government, was not defeated. No legislation of Congress
was, by the statute of Michigan, in that case interfered with, nor
any right conferred under the legislation of Congress in the
navigation of the river by licensed or enrolled vessels impaired,
defeated, or burdened in any respect. It was the improvement of a
river wholly within the state, and therefore,
Page 147 U. S. 413
until Congress took action on the subject, wholly under the
control of the authorities of the state.
County of Mobile v.
Kimball, 102 U. S. 691,
102 U. S. 699;
Escanaba Co. v. Chicago, 107 U. S. 678.
It follows from the views expressed that the judgment of the
Supreme Court of Illinois should have been for the plaintiff below,
the plaintiff in error here. Its judgment will therefore be
Reversed, and the cause remanded to that court for further
proceedings not inconsistent with this opinion.
