So much of the Act of the Legislature of New York passed May 22,
1862, amended April 17, 1865, as requires, with certain exceptions,
all ships or vessels which enter the port of New York, or load or
unload, or make fast to any wharf therein, to pay a certain
percentage per ton, to be computed on the tonnage expressed in the
registers of enrollments of such ships or vessels respectively, is
in violation of the Constitution of the United States, and
therefore void.
This was a bill in equity filed by the appellant for an
injunction to restrain the appellee, the captain of the port of New
York and his successors in office, from collecting a fee of one and
one-half percent per ton, to be computed from the registered
tonnage of certain vessels entering that port, pursuant to sec. 6,
c. 487, of the Acts of the legislature of the State of New York,
entitled
"An Act defining and regulating the powers, duties, and
compensation of the captain of the port and harbor-masters of the
port of New York, passed May 22, 1862, three-fifths being present.
Amended April 27, 1865."
That section is as follows:
"The following fees shall be collected under this act, and no
others: all ships or vessels of the United States of one hundred
tons burden or more, except lighters, tugs, barges, and canal
boats,
Page 94 U. S. 239
sound and river steamboats employed on regular lines, and all
ships or vessels that are permitted by the laws of the United
States to enter on the same terms as vessels of the United States,
which shall enter the said port of New York, or load or unload, or
make fast to any wharf therein, shall pay one and one half of one
percent per ton, to be computed from the tonnage expressed in the
registers of enrollments of such ships or vessels respectively; all
other foreign ships or vessels which shall arrive at and enter the
same port, and load or unload, or make fast to any wharf therein,
shall pay three cents per ton, to be computed on the tonnage
expressed in the registers or documents on board. Where
difficulties arise between vessels of less than one hundred tons
burden, and the captain of the port or a harbor master shall be
called upon to settle the same, the vessel, canal boat, barge, or
lighter in fault shall pay two dollars. Such fees shall be paid by
the masters, owners, or consignees of such ships or vessels, at the
office of the captain of the port, or to persons authorized by him
to collect the same, within forty eight hours after the arrival of
such ship or vessel. In default of such payment, the same having
been duly demanded, such masters, owners, or consignees, on whom
such demand shall have been previously made, shall pay double the
amount of such fees, to be sued for and recovered, in the name of
the captain of said port, in any court having cognizance thereof.
All fees under this act shall be paid to the captain of the port,
or upon his written order, and he shall have power to employ the
necessary assistance in making collections of the same, at an
expense of not exceeding five percent upon the amount collected,
which expense shall not be considered as the ordinary expense of
the office. The captain of the port shall have power to designate
some harbor master as his deputy, who may, during his absence, or
in case of a vacancy in his office, perform all the duties
belonging to the office of captain of the port; and the acts of
said harbor master, so performed, shall be valid and binding."
The bill alleges that the complainant, the Inman Steamship
Company, a corporation created under the laws of Great Britain, is
the owner of a line of steamships belonging to Liverpool, and
running thence back and forth to the port of New York, three of
which vessels in every five weeks arrive at and enter said port,
and load and unload and make fast to a wharf therein; that on
account thereof the defendant has heretofore exacted upwards of
$125 every five weeks, or over $1,300 per annum, whether or not any
services were rendered
Page 94 U. S. 240
by or required of him and the harbor masters. The bill further
alleges that the complainant, on failure so to pay such fee, is
liable to be charged in double the amount, to have its vessels
attached and seized, and to a multiplicity of suits on account
thereof.
The defendant demurred to the bill generally, for want of
equity. The court below sustained the demurrer and dismissed the
bill, whereupon the complainant appealed to this Court.
Page 94 U. S. 241
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is a bill in equity brought to enjoin the appellee from
collecting a port charge imposed upon the vessels of the appellant
in the harbor of New York, by an act of the legislature of the
state, a copy of which is annexed to the bill, and made a part of
it. The bill sets forth the following facts:
The appellant is a foreign corporation, and the owner of three
steamships, each of which enters the port of New York once within
every five weeks. The vessels are respectively of the burden of
2,950 tons, 2,823 tons, and of 2,712 tons. All these vessels belong
to the port of Liverpool, in England, and run between that port and
the port of New York. The character and object of the act of the
legislature complained of are indicated in its title, which is,
"An Act defining and regulating the powers, duties, and
compensation of the captain of the port and harbormasters of the
port of New York, passed May 22, 1862, three fifths being present;
amended April 17, 1865."
The sixth section declares:
"The following fees shall be collected under this act, and no
others: all ships or vessels of the United States of one hundred
tons burden or more, except lighters, tugs, barges and canal boats,
sound and river steamboats employed on regular lines, and all ships
or vessels that are permitted by the laws of the United States to
enter on the same terms as vessels of the United States, which
shall enter the port of New York, or load or unload, or make fast
to any wharf therein, shall pay one and one half of one cent per
ton, to be computed from the tonnage expressed in the registers of
enrollments of such ships or vessels respectively, and all other
foreign ships which shall arrive at and enter the same port, and
load or unload, or make fast to any wharf therein, shall pay three
cents per ton, to be computed on the tonnage expressed in the
registers or documents on board,"
&c.
In default of payment as prescribed, it is declared that the
master, owner, or consignee, upon whom demand of payment
Page 94 U. S. 242
may have been made, shall pay double the amount of such fees, to
be recovered in the name of the captain of the port. The amount
which the appellant was required to pay, and did pay, was one cent
and a half per ton upon the tonnage of their three vessels
respectively upon every arrival of each one in the American port.
The bill seeks to relieve them from this burden in future. The
respondent demurred to the bill in the court below. The demurrer
was sustained, and the bill dismissed. The case was thereupon
removed to this Court by appeal.
The following clauses of the Constitution of the United States
are invoked in behalf of the appellant as sustaining the bill:
"ART. 1, SEC. 10. No State shall, without the consent of
Congress, lay any imposts or duties on imports or exports, except
what may be absolutely necessary for executing its inspection laws,
and 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, and all such laws shall be subject to the revision
and control of the Congress."
"No State shall, without the consent of Congress, lay any duty
of tonnage, keep troops or ships of war in time of peace, enter
into any agreement or compact with another State or with a foreign
power, or engage in war, unless actually invaded, or in such
imminent danger as will not admit of delay."
It is not claimed that Congress ever consented to the passage of
the act of 1862, or of the amendatory act of 1865.
It is insisted by the counsel for the appellant that the charge
here in question is a regulation of commerce, which it was not
competent for the state to prescribe, and also a tonnage duty,
which the state was forbidden to impose.
Our remarks will be confined to the latter proposition.
The classification of the powers of the national government, the
several categories into which they may be resolved, and the rights
and powers of the states in our complex system of polity, have been
so often considered by this Court, that it is unnecessary upon this
occasion to re examine the subject.
Gilman v.
Philadelphia, 3 Wall. 713;
Ex Parte
McNeil, 13 Wall. 236.
Page 94 U. S. 243
Tonnage, in our law, is a vessel's "internal cubical capacity in
tons of one hundred cubic feet each, to be ascertained" in the
manner prescribed by Congress. Act of May 6, 1864, 13 Stat. pp. 70,
72; Rev.Stat.U.S. 804, � 4153. "Tonnage duties are duties
upon vessels in proportion to their capacity." Bouv.Law Dict.,
"Tonnage."
The term was formerly applied to merchandise. Cowel, in his Law
Dictionary, published in 1708, thus defines it:
"Tonnage (tonnagium) is a custom or impost paid to the king for
merchandise carried out or brought in ships, or such like vessels,
according to a certain rate upon every ton, and of this you may
read in the statutes of 12 Edw. IV. c. 3; 6 Hen. VIII. c. 14,"
&c. The vital principle of such a tax or duty is that it is
imposed, whatever the subject, solely according to the rule of
weight, either as to the capacity to carry, or the actual weight of
the thing itself.
In this law of the state there are several important points that
must not be overlooked. The charge is not exacted for any services
rendered or offered to be rendered. If the vessel enter the port
and immediately take her departure, or load or unload, or make fast
to any wharf, either of these things disjunctively brings her
within the act, and makes her liable to the burden prescribed.
The charge is applied wholly irrespective of the
ad
valorem principle.
If either of the three vessels of the appellant was new and
making her first voyage, and another of the same tonnage was making
her last trip before being broken up, and the former were of many
times the value of the latter, the act would apply the same
procrustean rule to both. The rate of payment and the amount to be
paid would in both cases be the same.
The act makes a discrimination. To one class of vessels it
applies the rate here in question, to another class double that
rate, and to yet another class none at all. Those belonging to the
latter are wholly exempted.
We think a clearer case of the imposition of a tonnage duty than
is presented in the record before us can hardly be imagined. If the
law had been passed by Congress instead of the state, and the
charge imposed had been expressly designated a
Page 94 U. S. 244
tonnage duty, its character as such could not appear in a
stronger light. But the name is immaterial -- it is the substance
we are to consider.
It does not advance the argument in behalf of the appellee to
maintain that the regulations prescribed by the act are necessary
and proper in the port for which they are provided. It is not our
purpose to examine them, except as to the proposition in hand. It
may be that, aside from the imposition of this tax, they contain
nothing exceptionable, and that in all other respects they are wise
and well considered. Similar provisions, varying according to local
circumstances, exist at all important points throughout the world
whither marine commerce finds its way. They are indispensable to
those engaged in that business. They fence out many evils, and
promote largely the convenience and the welfare of those engaged in
this field of enterprise. Perhaps it is hardly too strong language
to say, they are well nigh vital to commerce itself. It may be
conceded, also, that foreign steamships and other vessels visiting
the ports of a state for business purposes may be made liable by
the laws of such state for all reasonable and proper port charges.
This is but a fair return for the benefits received. But such
charges must not be repugnant to the Constitution of the United
states. Any conflict is fatal to them. The warrant for such
competent legislation may be found in that immense mass of police
and other powers which the states originally possessed, which they
have not parted with, and which still belongs to them; or it may in
some cases be found among those which the states may exercise, but
only until Congress shall see fit to act upon the subject. The
authority of the state then retires, and lies in abeyance until the
occasion for its exercise shall recur.
Ex Parte
McNeil, 13 Wall. 236.
"Powers not delegated to the United states by the Constitution,
nor prohibited by it to the states, are reserved to the states
respectively, or to the people."
Const. amend. 10.
The state, in passing this law imposing a tonnage duty, has
exercised a power expressly prohibited to it by the Constitution.
In that particular the law is therefore void. This view is
sustained by the rulings of this Court in the
State
Tonnage Tax Cases, 12 Wall. 204, and
Cannon v. New
Orleans, 20 Wall.
Page 94 U. S. 245
577.
See also Steamship Company v. Port
Wardens, 6 Wall. 31, and
Peete v.
Morgan, 19 Wall. 581.
The tax imposed is not merely a mode of measuring the
compensation to be paid. The answer to this suggestion is that it
is exacted where there is nothing to be paid for, and has no
reference to any circumstance in this connection but the tonnage of
the vessel and the class to which it belongs.
The commerce clauses of the Constitution had their origin in a
wise and salutary policy. They give to Congress the entire control
of the foreign and interstate commerce of the country. They were
intended to secure harmony and uniformity in the regulations by
which they should be governed. Wherever such commerce goes, the
power of the nation accompanies it, ready and competent, as far as
possible, to promote its prosperity and redress the wrongs and
evils to which it may be subjected. It was deemed especially
important that the states should not impose tonnage taxes. Hence
the prohibition in the Constitution, without the assent of Congress
previously given. The confusion and mischiefs that would ensue if
this restriction were removed are too obvious to require comment.
The lesson upon the subject taught by the law before us is an
impressive one.
How the charges, which it is conceded the state may impose, must
be shaped in order to be valid, is a subject which it is not within
our province to consider, and in regard to which it would not be
proper for us to express any opinion. We decide only the point
before us.
Decree reversed, and cause remanded with directions to
proceed in conformity to this opinion.
MR. CHIEF JUSTICE WAITE did not sit in this case, nor take any
part in its decision.
