1. The statute of New York of May 31, 1881, imposing a tax on
every alien passenger who shall come by vessel from a foreign
country to the port of New York, and holding the vessel liable for
the tax, is a regulation of foreign commerce, and void.
Henderson v. Mayor of New York, 92 U. S.
259, and
Chy Luay v. Freeman, 92 U. S.
275, cited, and the rulings therein made reaffirmed.
2. The statute is not relieved from this constitutional
objection by declaring in its title that it is to raise money for
the execution of the inspection laws of the state, which authorize
passengers to be inspected in order to determine who are criminals,
paupers, lunatics, orphans, or infirm persons, without means or
capacity to support themselves and subject to become a public
charge, as such facts are not to be ascertained by inspection
alone.
3. The words "inspection laws" "imports," and "exports," as used
in cl. 2, Section 10, Article I, of the Constitution, have
exclusive reference to property.
4. This is apparent from the language of cl. 1, Section 9, of
the same article where, in regard to the admission of persons of
the African race, the word "migration" is applied to free persons,
and "importation" to slaves.
ERROR to the Circuit Court of the United States for the Southern
District of New York.
The case is fully stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
This was an action commenced in the Court of Common Pleas for
the City and County of New York to recover of the defendant the sum
of one dollar for each alien passenger brought into New York by its
vessels, for whom a tax has not before been paid, with penalties
and interest. The case was removed into the Circuit Court of the
United States for the Southern District of New York, which court,
on demurrer to the complaint, rendered a judgment in favor of the
defendant. To that judgment this writ of error is prosecuted.
Page 107 U. S. 60
The tax in this case is demanded under sec. 1 of a statute of
New York, passed May 31, 1881, entitled "An act to raise money for
the execution of the inspection laws of the State of New York." The
section reads thus:
"SEC. 1. There shall be levied and collected a duty of one
dollar for each and every alien passenger who shall come by vessel
from a foreign port to the port of New York for whom a tax has not
heretofore been paid, the same to be paid to the Chamberlain of the
City of New York by the master, owner, agent, or consignee of every
such vessel within twenty-four hours after the entry thereof into
the port of New York."
It has been so repeatedly decided by this Court that such a tax
as this is a regulation of commerce with foreign nations, confided
by the Constitution to the exclusive control of Congress, and this
Court has so recently considered the whole subject in regard to
similar statutes of the States of New York, Louisiana, and
California, that unless we are prepared to reverse our decisions
and the principles on which they are based, in the cases of
Henderson v. Mayor of New York and
Chy Lung v.
Freeman, 92 U. S. 259,
92 U. S. 275, there
is little to say beyond affirming the judgment of the circuit
court, which was based on those decisions.
The argument mainly relied on in the present case is that the
new statute of New York, passed after her former statutes had been
declared void in the
Passenger
Cases, 7 How. 283, and in the recent case of
Henderson v. Mayor of New York, is in aid of the
inspection laws of the state. This argument is supposed to derive
support from another statute, passed three days earlier, entitled
"An act for the inspection of alien emigrants and their effects by
the commissioners of emigration."
This act empowers and directs the commissioners of
emigration
"to inspect the persons and effects of all persons arriving by
vessel at the port of New York from any foreign country as far as
may be necessary to ascertain who among them are habitual
criminals, or pauper lunatics, idiots, or imbeciles, or deaf, dumb,
blind, infirm, or orphan persons, without means or capacity to
support themselves and subject to become public charge, and whether
their persons or effects are affected with
Page 107 U. S. 61
any infectious or contagious disease, and whether their effects
contain any criminal implements or contrivances."
Subsequent sections direct how such characters, if found, shall
be dealt with by the board. Other sections of the Act of May 31
direct the chamberlain of the city to pay over to the Commissioners
of Emigration all such sums of money as may be necessary for the
execution of the inspection laws of the State of New York, and the
net produce of all duties received by him under that act, after the
necessary payments to the commissioners of emigration, to the
Treasury of the United States.
These two statutes, construed together, it is argued, are
inspection laws within the meaning of Article I, Section 10, clause
2, of the Constitution of the United States, to-wit:
"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, 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."
What laws may be properly classed as inspection laws under this
provision of the Constitution must be determined largely by the
nature of the inspection laws of the states at the time the
Constitution was framed.
In the opinion of this Court in the case of
Turner v.
Maryland, delivered by MR. JUSTICE BLATCHFORD
contemporaneously with the one in the present case, there is an
elaborate examination of those statutes, many of which are cited,
ante, pp.
107 U. S. 51-54,
and similar citations are found in a footnote to the report of
Gibbon v. Ogden,
9 Wheat. 1, 119 [footnote not reproduced -- see printed
version].
We feel quite safe in saying that neither at the time of the
formation of the Constitution nor since has any inspection law
included anything but personal property as a subject of its
operation. Nor has it ever been held that the words "imports and
exports" are used in that instrument as applicable to free human
beings by any competent judicial authority.
We know of nothing which can be exported from one country or
imported into another that is not in some sense property --
property
Page 107 U. S. 62
in regard to which someone is owner and is either the importer
or the exporter. This cannot apply to a free man. Of him it is
never said he imports himself or his wife or his children. The
language of Section 9, Article I, of the Constitution, which is
relied on by counsel, does not establish a different
construction:
"The migration or importation of such persons as any of the
states now existing shall think proper to admit shall not be
prohibited by the Congress prior to the year 1808, but a tax or
duty may be imposed on such importation, not exceeding ten dollars
for each person."
There has never been any doubt that this clause had exclusive
reference to persons of the African race. The two words "migration"
and "importation" refer to the different conditions of this race as
regards freedom and slavery. When the free black man came here, he
migrated; when the slave came, he was imported. The latter was
property, and was imported by his owner as other property, and a
duty could be imposed on him as an import. We conclude that free
human beings are not imports or exports within the meaning of the
Constitution.
In addition to what is said above, it is apparent that the
object of these New York enactments goes far beyond any correct
view of the purpose of an inspection law. The commissioners are
"to inspect all persons arriving from any foreign country to
ascertain who among them are habitual criminals or pauper lunatics,
idiots or imbeciles, . . . or orphan persons, without means or
capacity to support themselves, and subject to become a public
charge."
It may safely be said that these are matters incapable of being
satisfactorily ascertained by inspection.
What is an inspection? Something which can be accomplished by
looking at or weighing or measuring the thing to be inspected, or
applying to it at once some crucial test. When testimony or
evidence is to be taken and examined, it is not inspection in any
sense whatever.
Another section provides for the custody, the support, and the
treatment for disease of these persons and the transportation of
criminals. Are these inspection laws? Is the ascertainment of a
guilt of a crime to be made by inspection?
Page 107 U. S. 63
In fact, these statutes differ from those heretofore held void
only in calling them in their caption "inspection laws," and in
providing for payment of any surplus, after the support of paupers,
criminals, and diseased persons, into the Treasury of the United
States -- a surplus which, in this enlarged view of what are the
expenses of an inspection law, it is safe to say will never
exist.
A state cannot make a law designed to raise money to support
paupers, to detect or prevent crime, to guard against disease, and
to cure the sick an inspection law within the constitutional
meaning of that word by calling it so in the title.
Since the decision of this case in the circuit court, Congress
has undertaken to do what this Court has repeatedly said it alone
had the power to do. By the Act of August 3, 1882, c. 376, entitled
"An act to regulate immigration," a duty of 50 cents is to be
collected for every passenger not a citizen of the United States
who shall come to any port within the United States by steam or
sail vessel from a foreign country, from the master of said vessel,
by the collector of customs. The money so collected is to be paid
into the Treasury of the United States and to constitute a fund to
be called the immigrant fund, for the care of immigrants arriving
in the United States and the relief of such as are in distress. The
Secretary of the Treasury is charged with the duty of executing the
provisions of the act and with supervision over the business of
immigration. No more of the fund so raised is to be expended in any
port than is collected there. This legislation covers the same
ground as the New York statute, and they cannot coexist.
Judgment affirmed.