The acts of Congress require that every vessel shall be
registered by the collector of the district in which is the port
nearest to the place where her owner or owners reside. The name of
this port must be painted on her stern, in large letters, and every
bill of sale of her must be recorded in the office where she is
registered.
Where a company, incorporated by New York, all the stockholders
being residents of that state, owned vessels which were employed in
the transportation of passengers, &c., between New York and San
Francisco, in California, and between San Francisco and different
ports in the Territory of Oregon, all of which vessels were ocean
steamships, and duly registered in New York, that they remained in
California no longer than was necessary to land their passengers
and freight and prepare for the next voyage, these vessels are not
liable to assessment and taxation under the laws of California and
authorities of San Francisco.
They were there but temporarily engaged in lawful trade and
commerce, with their sites at the home port, where the vessels
belonged and where the owners were liable to be taxed for the
capital invested and where the taxes had been paid.
Page 58 U. S. 597
The case is stated in the opinion of the Court.
MR. JUSTICE NELSON delivered the opinion of the Court.
The suit was brought in the district court by the company to
recover back a sum of money which they were compelled to pay to the
defendant, as taxes assessed in the State of California, upon
twelve steamships belonging to them, which were temporarily within
the jurisdiction of the state.
The complaint sets forth that the plaintiffs are an incorporated
company by the laws of New York; that all the stockholders are
residents and citizens of that state; that the principal office for
transacting the business of the company is located in the City of
New York, but, for the better transaction of their business, they
have agencies in the City of Panama, New Grenada, and in the City
of San Francisco, California; that they have also a naval dock and
shipyard at the port of Benicia of that state for furnishing and
repairing their steamers; that on the arrival at the port of San
Francisco, they remain no longer than is necessary to land their
passengers, mails, and freight, usually done in a day; they then
proceed to Benicia and remain for repairs and refitting until the
commencement of the next voyage, usually some ten or twelve days;
that the business in which they are engaged is in the
transportation of passengers, merchandise, treasure, and the United
States mails between the City of New York and the City of San
Francisco by way of Panama and between San Francisco and different
ports in the Territory of Oregon; that the company are sole owners
of the several vessels, and no portion of the interest is owned by
citizens of the State of California; that the vessels are all ocean
steamships, employed exclusively in navigating the waters of the
ocean; that all of them are duly registered at the custom house in
New York, where the owners reside; that taxes have been assessed
upon all the capital of the plaintiffs represented by the steamers
in the State of New York, under the laws of that state, ever since
they have been employed in the navigation, down to the present
time; that the said steamships have been assessed in the State of
California and County of San Francisco for the year beginning 1
July, 1851, and ending 30 June, 1852, claiming the
Page 58 U. S. 598
assessment as annually due under an act of the legislature of
the state; that the taxes assessed amount to $11,962.50, and were
paid under protest, after one of the vessels was advertised for
sale by the defendant, in order to prevent a sale of it.
To this complaint the defendant demurred, and the court below
gave judgment for the plaintiffs.
By the 3d section of the Act of Congress of 31 December, 1792,
it is provided that every ship or vessel except as thereafter
provided shall be registered by the collector of the district, in
which shall be comprehended the port to which the ship or vessel
shall belong at the time of her registry, and which port shall be
deemed to be that at or nearest to which the owner, if there be but
one, or, if more than one, nearest to the place where the husband,
or acting and managing owner usually resides, and the name of the
ship and of the port to which she shall so belong shall be painted
on her stern on a black background in white letters of not less
than three inches in length, and if any ship or vessel of the
United States shall be found without having her name and the name
of the port to which she belongs painted in the manner mentioned,
the owner or owners shall forfeit fifty dollars.
And by the Act of 29 July, 1850, 9 Stat. 440, it is provided
that no bill of sale, mortgage, or conveyance of any vessel shall
be valid against any person other than the grantor &c., and
persons having actual notice unless such bill of sale, mortgage, or
conveyance be recorded in the office of the collector of the
customs where such vessel is registered or enrolled.
These provisions and others that might be referred to very
clearly indicate that the domicile of a vessel that requires to be
registered, if we may so speak, or home port, is the port at which
she is registered, and which must be the nearest to the place where
the owner or owners reside. In this case, therefore, the home port
of the vessels of the plaintiffs was the port of New York, where
they were duly registered and where all the individual owners are
resident, and where is also the principal place of business of the
company, and where it is admitted the capital invested is subject
to state, county, and other local taxes.
These ships are engaged in the transportation of passengers,
merchandise, &c., between the City of New York and San
Francisco by the way of Panama, and between San Francisco and
different ports in the Territory of Oregon. They are thus engaged
in the business and commerce of the country upon the highway of
nations touching at such ports and places as these great interests
demand and which hold out to the owners sufficient
Page 58 U. S. 599
inducements by the profits realized or expected to be realized.
And so far as respects the ports and harbors within the United
States, they are entered and cargoes discharged or laden on board,
independently of any control over them, except as it respects such
municipal and sanitary regulations of the local authorities as are
not inconsistent with the constitution and laws of the general
government, to which belongs the regulation of commerce with
foreign nations and between the states.
Now it is quite apparent that if the State of California
possessed the authority to impose the tax in question, any other
state in the Union into the ports of which the vessels entered in
the prosecution of their trade and business might also impose a
like tax. It may be that the course of trade or other circumstances
might not occasion as great a delay in other ports on the Pacific
as at the port of San Francisco. But this is a matter accidental,
depending upon the amount of business to be transacted at the
particular port, the nature of it, necessary repairs &c., which
in no respect can affect the question as to the situs of the
property in view of the right of taxation by the state.
Besides, whether the vessel, leaving her home port for trade and
commerce, visits in the course of her voyage or business several
ports or confines her operations in the carrying trade to one are
questions that will depend upon the profitable returns of the
business, and will furnish no more evidence that she has become a
part of the personal property within the state, and liable to
taxation at one port than at the others. She is within the
jurisdiction of all or any one of them temporarily, and for a
purpose wholly excluding the idea of permanently abiding in the
state or changing her home port. Our merchant vessels are not
unfrequently absent for years in the foreign carrying trade,
seeking cargo, carrying and unlading it from port to port, during
all the time absent, but they neither lose their national character
nor their home port as inscribed upon their stern.
The distinction between a vessel in her home port and when lying
at a foreign one or in the port of another state is familiar in the
admiralty law, and she is subjected in many cases to the
application of a different set of principles.
32 U. S. 7 Pet.
324;
17 U. S. 4 Wheat.
438.
We are satisfied that the State of California had no
jurisdiction over these vessels for the purpose of taxation; they
were not, properly, abiding within its limits so as to become
incorporated with the other personal property of the state; they
were there but temporarily, engaged in lawful trade and
commerce
Page 58 U. S. 600
with their situs at the home port, where the vessels belonged
and where the owners were liable to be taxed for the capital
invested, and where the taxes had been paid.
An objection is taken to the recovery against the collector on
the ground, mainly that the assessment under the law of California
by the assessors was a judicial act, and that the party should have
pursued his remedy to set it aside according to the provisions of
that law.
We do not think so. The assessment was not a judicial, but a
ministerial act, and as the assessors exceeded their powers in
making it, the officer is not protected.
The payment of the tax was not voluntary, but compulsory, to
prevent the sale of one of the ships.
Our conclusion is that the judgment of the court below is right,
and should be
Affirmed.
MR. JUSTICE DANIEL dissented, and MR. JUSTICE CAMPBELL concurred
in the judgment of the Court upon the ground stated in his
opinion.
MR. JUSTICE DANIEL.
I dissent from the decision of the Court in this case, it being
my opinion that neither the circuit court nor this Court could take
jurisdiction over the parties to this suit, and that therefore this
cause should be remanded to the district court with directions to
dismiss it for want of jurisdiction.
MR. JUSTICE CAMPBELL.
I concur in the judgment. But I concur only in consequence of
the facts stated in the declaration and which are admitted by the
demurrer. The material fact is that the vessels were
in
transitu, having no situs in California nor permanent
connections with its internal commerce.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Northern
District of California, and was argued by counsel. On consideration
whereof, it is now here ordered and adjudged by this Court that the
judgment of the said district court in this cause be and the same
is hereby affirmed, with costs, and interest until paid, at the
same rate per annum that similar judgments bear in the courts of
the State of California.