1. Although taxes levied, as on
property, by a state
upon vessels owned by its citizens and based on a valuation of the
same, are not prohibited by the federal Constitution, yet taxes
cannot be imposed on them by the state "at so much per ton of the
registered tonnage." Such taxes are within the prohibition of the
Constitution, that "no state shall, without the consent of
Congress, lay any duty of tonnage."
2. Nor is the case varied by the fact that the vessels were not
only owned by citizens of the state, but exclusively engaged in
trade between places within the state.
These were two cases, which, though coming in different forms,
involved one and the same point only; and at the bar -- where the
counsel directed attention to the principle involved, separated
from the accidents of the case -- were discussed together as
presenting "precisely the same question." The matter was thus:
The Constitution ordains that "no state shall without the
consent of Congress
lay any duty of tonnage." With this
provision in force as superior law, the State of Alabama passed on
the 22d of February, 1866, a revenue law. By this law, the rate of
taxation for property generally was the one-half of one percent:
but "on
all steamboats, vessels, and other watercrafts
plying in the navigable waters of the state," the act levied a tax
at "the rate of $1 per tort of the registered tonnage
thereof," which it declared should
"be assessed and collected
Page 79 U. S. 205
at the port where such vessels are registered, if practicable;
otherwise at any other port or landing within the state where such
vessel may be."
The tax collector was directed by the act to demand, in each
year, of the person in charge of the vessel, if the taxes lead been
paid. If a receipt for the same was not produced, he was to
immediately assess the same according to tonnage, and if such tax
was not paid on demand, he was to seize the boat, &c., and,
after notice, proceed and sell the same for payment of the tax,
&c., and pay the surplus into the county treasury for the use
of the owner. If the vessel could not be seized, the collector was
to make the amount of the tax out of the real and personal estate
of the owner, &c.
Under this act, one Lott, tax collector of the State of Alabama,
demanded of Cox, the owner of the Dorrance, a steamer of 321 tons,
and valued at $5,000, and of several other steamers, certain stems
as taxes; and under an act of 1867, identical in language with the
one of 1866, just quoted, demanded from the Trade Company of Mobile
certain sums on like vessels owned by them; the tax in all the
cases being proportioned to the registered tonnage of the
vessel.
The steamboats, the subject of the tax, were owned
exclusively by citizens of the State of Alabama, and were
engaged in the navigation of the Alabama, Bigbee, and Mobile
Rivers, carrying freight and passengers between Mobile and other
points of said rivers,
altogether within the limits of that
state. These waters were navigable from the sea for vessels of
"ten and more tons burden," and it was not denied that there were
ports of delivery on them above the highest points to which these
boats plied. The owners of the boats were not assessed for any
other tax on them than the one here claimed. The boats were
enrolled and licensed for the coasting trade. Though running,
therefore, between points altogether within the limits of the State
of Alabama, the boats were, as it seemed, [
Footnote 1] of that sort on which Congress lays a
tonnage duty.
Page 79 U. S. 206
Cox, under compulsion and protest, paid the tax demanded of him,
and then brought assumpsit in one of the inferior state courts of
Alabama, to get back the money. The Trade Company refused to pay,
and filed a bill in a like court, to enjoin the collector from
proceeding to collect. The ground of resistance to the tax in each
case was this, that being laid in proportion to the tonnage of the
vessel, the tax was laid in a form and manner which the state was
prohibited by the already quoted section of the Constitution from
adopting. The right of the state to lay a tax on vessels according
to their value and as property was not denied, but on the contrary,
conceded. [
Footnote 2] Judgment
being given in each case against the validity of the tax, the
matter was taken to the Supreme Court of Alabama, which decided
that it was lawful. To review that judgment the case was now
here.
Page 79 U. S. 209
MR. JUSTICE CLIFFORD delivered the judgment of the Court, giving
an opinion in each of the cases.
I
. IN THE FIRST CASE
Assumpsit for money had and received is an appropriate remedy to
recover back moneys illegally exacted by a collector as taxes in
all jurisdictions where no other remedy is given, unless the tax
was voluntarily paid or sonic statutory conditions are annexed to
the exercise of the right to sue, which were unknown at common
law.
Where the party assessed voluntarily pays the tax, he is without
remedy in such an action, but if the tax is illegal or was
erroneously assessed, and he paid it by compulsion of law or under
protest or with notice that he intends to institute a suit to test
the validity of the tax, he may recover it back in such an action
unless the legislative authority, in the jurisdiction where the tax
was levied has prescribed some other remedy or has annexed some
other conditions to the exercise of the right to institute such a
suit. [
Footnote 3]
On the twenty-second of February, 1866, the Legislature of
Alabama passed a revenue act, and therein, among other things,
levied a tax "on all steamboats, vessels, and other watercrafts
plying in the navigable waters of the state, at
Page 79 U. S. 210
the rate of one dollar per ton of the registered tonnage
thereof," to
"be assessed and collected at the port where such vessels are
registered, if practicable, otherwise at any other port or landing
within the state where such vessel may be. [
Footnote 4]"
Five steamboats were owned by the plaintiff's, who were citizens
of that state, doing business at Mobile under the firm name set
forth in the record. All of the steamboats were duly enrolled and
licensed in conformity to the act of Congress entitled "An act for
enrolling and licensing ships and vessels to be employed in the
coasting trade of the United States," and the record shows that at
the time the taxes which are the subject of controversy were
imposed and collected, all those steamboats were engaged in the
navigation of the Alabama, Bigbee, and Mobile Rivers, in the
transportation of freight and passengers between the port of Mobile
and other towns and landings on said rivers, within the limits of
the state, the said rivers being "waters navigable from the sea by
vessels of ten or more tons burden." [
Footnote 5]
Such steamboats are deemed ships and vessels of the United
States, and as such are entitled to the privileges secured to such
ships and vessels by the act of Congress providing for enrolling
and licensing ships and vessels to be employed in that trade.
[
Footnote 6]
Annexed to the agreed statement exhibited in the record is a
schedule of the taxes imposed and collected, in which are also
given the names of the respective steamboats, their tonnage and
their value, and the proportion assessed by the county as well as
that imposed by the state. Committed as the assessments were to the
same person to collect, it is immaterial whether the taxes were
assessed for the state or for the county, as the collector demanded
the whole amount of the plaintiffs, and they paid the same under
protest, the sums specified as county taxes including also a charge
made by the collector for fees in collecting the money.
Page 79 U. S. 211
Separately stated, the taxes were as follows: on the steamboat
C. W. Dorrance, 321 tons burden, valued at five thousand
dollars, taxed, state tax $321, county tax $322.25;
Flirt,
tonnage 214 tons, valued at two thousand five hundred dollars,
taxed, state tax $214, county tax $215.25;
Cherokee,
tonnage 310 tons, valued at fifteen thousand five hundred dollars,
taxed, state tax $310, county tax $311.25;
Coquette,
tonnage 245 tons, valued at four thousand dollars, taxed, state tax
$245, county tax $246.25;
St. Charles, tonnage 331 tons,
valued at fifteen thousand dollars, taxed, state tax $331, county
tax $332.25; showing that the county tax as well as the state tax
is one dollar per ton of the registered tonnage of the steamboats,
exclusive of the fees charged by the collector.
Demand of the taxes having been made by the collector, the
plaintiffs protested that the same were illegal, but they
ultimately paid the same to prevent the collector from seizing the
steamboats and selling the same in case they refused to pay the
amount. They paid the sum of two thousand eight hundred and
forty-eight dollars and twenty-five cents as the amount of the
taxes, fees, and expenses demanded by the defendant, and brought an
action of assumpsit against the collector in the circuit court of
the state for Mobile County to recover back the amount upon the
ground that the sum was illegally exacted. Judgment was rendered in
that court for the plaintiffs, the court deciding that the facts
disclosed in the agreed statement showed that the taxes were
illegal as having been levied in violation of the federal
Constitution. Appeal was taken by the defendant to the supreme
court of the state, where the parties were again heard, but the
supreme court of the state, differing in opinion from the circuit
court where the suit was commenced, rendered judgment for the
defendant, whereupon the plaintiffs sued out a writ of error and
removed the record into this Court for reexamination.
I. Two principal objections were made to the taxes by the
plaintiffs, as appears by the agreed statement, which is made a
part of the record:
(1) That the taxes as levied and collected
Page 79 U. S. 212
were in direct contravention of the prohibition of the
Constitution that "No state shall, without the consent of Congress,
levy any duty of tonnage," and the proposition of the plaintiffs
was and still is that the act of the legislature of the state
directs in express terms that such taxes shall be levied on all
steamboats, vessels, and other watercrafts plying in the navigable
waters of the state.
(2) That the state law levying the taxes violates the compact
between the state and the United States that
"All navigable waters within the said state shall forever remain
public highways, free to the citizens of the said state and of the
United States, without any tax, duty, impost, or toll therefor
imposed by the said state. [
Footnote 7]"
1. Congress has prescribed the rules of admeasurement and
computation for estimating the tonnage of American ships and
vessels. [
Footnote 8]
Viewed in the light of those enactments, the word "tonnage," as
applied to American ships and vessels, must be held to mean their
entire internal cubical capacity or contents of the ship or vessel
expressed in tons of one hundred cubical feet each, as estimated
and ascertained by those rules of admeasurement and of computation.
[
Footnote 9]
Power to tax, with certain exceptions, resides with the states
independent of the federal government, and the power, when confined
within its true limits, may be exercised without restraint from any
federal authority. They cannot, however, without the consent of
Congress, lay any duty of tonnage, nor can they levy any imposts or
duties on imports or exports except what may be absolutely
necessary for executing their inspection laws, as without the
consent of Congress they are unconditionally prohibited from
exercising any such power. Outside of those prohibitions, the power
of the states to tax extends to all objects within the sovereign
power of the states except the means and instruments of the federal
government. But ships and vessels
Page 79 U. S. 213
owned by individuals and belonging to the commercial marine are
regarded as the private property of their owners, and not as the
instruments or means of the federal government, and as such, when
viewed as property, they are plainly within the taxing power of the
states, as they are not withdrawn from the operation of that power
by any express or implied prohibition contained in the federal
Constitution. [
Footnote
10]
Argument, therefore, to show that they may be taxed as other
property belonging to the citizens of the state is hardly
necessary, as the opposite theory is indefensible in principle,
contrary to the generally received opinion, and is wholly
unsupported by any judicial determination. Direct adjudication to
support that proposition is not to be found in the reported
decisions of this Court, but there are several cases which concede
that such a tax, if levied by a state, would be legal, and no doubt
is entertained that the concession is properly made. [
Footnote 11]
Such a concession, however, does not advance the argument much
for the defendant, as it is not only equally true but absolutely
certain that no state can, without the consent of Congress, lay any
duty of tonnage, and the question still remains to be determined
whether the taxes in this case were or were not levied as duties of
tonnage, as it is clear, if they were, that the judgment of the
state court must be reversed.
Taxes levied by a state upon ships and vessels owned by the
citizens of the state
as property, based on a valuation of the
same as property, are not within the prohibition of the
Constitution, but it is equally clear and undeniable that taxes
levied by a state upon ships and vessels as instruments of commerce
and navigation are within that clause of the instrument which
prohibits the states from levying
any duty of tonnage
without the consent of Congress, and it makes no difference whether
the ships or vessels taxed belong to the citizens of the state
which levies the tax or the citizens
Page 79 U. S. 214
of another state, as the prohibition is general, withdrawing
altogether from the states the power to lay any duty of tonnage
under any circumstances, without the consent of Congress. [
Footnote 12]
Annual taxes upon property in ships and vessels are continually
laid, and their validity was never doubted or called in question,
but if the states, without the consent of Congress, tax ships or
vessels as instruments of commerce by a tonnage duty or indirectly
by imposing the tax upon the master or crew, they assume a
jurisdiction which they do not possess, as every such act falls
directly within the prohibition of the Constitution. [
Footnote 13]
Prior to the adoption of the Constitution, the states attempted
to regulate commerce, and they also levied duties on imports and
exports and duties of tonnage, and it was the embarrassments
growing out of such regulations and conflicting obligations which
mainly led to the abandonment of the Confederation and to the more
perfect union under the present Constitution.
Congress possesses the power to regulate commerce with foreign
nations and among the several states, and it is well settled law
that the word "commerce," as used in the Constitution, comprehends
navigation, and that it extends to every species of commercial
intercourse between the United States and foreign nations and to
all commerce in the several states except such as is completely
internal and which does not extend to or affect other states.
[
Footnote 14]
Authority is also conferred upon Congress to lay and collect
taxes, but this grant does not supersede the power of the states to
tax for the support of their own governments, nor is the exercise
of that power by the states, unless it extends to objects
prohibited by the Constitution, an exercise of any portion of the
power that is granted to the United States.
Page 79 U. S. 215
Whether the act of laying and collecting taxes, duties, imposts,
and excises was a branch of the taxing power or of the power to
regulate commerce was directly under consideration in the case last
cited, and it was conclusively settled that the exercise of such a
power must be classed with the power to levy taxes. Had the
Constitution, therefore, contained no prohibition, it is quite
clear that it would have been competent for the states to levy
duties on imports, exports, or tonnage, as they bad done under the
Confederation.
Tonnage duties are as much taxes as duties on imports or
exports, and the prohibition of the Constitution extends as fully
to such duties if levied by the states as to duties on imports or
exports, and for reasons quite as strong as those which induced the
framers of the Constitution to withdraw imports and exports from
state taxation. Measures, however, scarcely distinguishable from
each other may flow from distinct grants of power, as for example,
Congress does not possess the power to regulate the purely internal
commerce of the states, but Congress may enroll and license ships
and vessels to sail from one port to another in the same state, and
it is clear that such ships and vessels are deemed ships and
vessels of the United States, and that as such they are entitled to
the privileges of ships and vessels employed in the coasting trade.
[
Footnote 15]
Ships and vessels enrolled and licensed under that act are
authorized to carry on the coasting trade, as the act contains a
positive enactment that the ships and vessels it describes, and no
others, shall be deemed ships or vessels of the United States
entitled to the privileges of ships and vessels employed in the
trade therein described. [
Footnote 16]
Evidently the word "license," as used in that act, as the Court
said in that case, means permission or authority, and it is equally
clear that a license to do any particular thing is a permission or
authority to do that thing, and if granted by a person having power
to grant it, that it transfers to the grantee the right to do
whatever it purports to authorize.
Page 79 U. S. 216
Unquestionably the power to regulate commerce includes
navigation as well as traffic in its ordinary signification, and
embraces ships and vessels as the instruments of intercourse and
trade as well as the officers and seamen employed in their
navigation. [
Footnote
17]
Steamboats, as well as sailing ships and vessels, are required
to be enrolled and licensed for the coasting trade, and the record
shows that all the steamboats taxed in this case had conformed to
all the regulations of Congress in that regard, that they were duly
enrolled and licensed for the coasting trade and were engaged in
the transportation of passengers and freight within the limits of
the state upon waters navigable from the sea by vessels of ten or
more toils burden.
Tonnage duties, to a greater or less extent, have been imposed
by Congress ever since the federal government was organized under
the Constitution to the present time. They have usually been
exacted when the ship or vessel entered the port, and have been
collected in a manner not substantially different from that
prescribed in the act of the state legislature under consideration.
Undisputed authority exists in Congress to impose such duties, and
it is not pretended that any consent has ever been given by
Congress to the state to exercise any such power.
If the tax levied is a duty of tonnage, it is conceded that it
is illegal, and it is difficult to see how the concession could be
avoided, as the prohibition is express, but the attempt is made to
show that the legislature, in enacting the law imposing the tax,
merely referred to the registered tonnage of the steamboats
"as a way or mode to determine and ascertain the tax to be
assessed on the steamboats, and to furnish a rule or rate to govern
the assessors in the performance of their duties."
Suppose that could be admitted, it would not have much
Page 79 U. S. 217
tendency to strengthen the argument for the defendant, as the
suggestion concedes what is obvious from the schedule, that the
taxes are levied without any regard to the value of the steamboats.
But the proposition involved in the suggestion cannot be admitted,
as by the very terms of the act the tax is levied on the steamboats
wholly irrespective of the value of the vessels as property, and
solely and exclusively on the basis of their cubical contents as
ascertained by the rules of admeasurement and computation
prescribed by the act of Congress.
By the terms of the law, the taxation prescribed is "at the rate
of one dollar per ton of the registered tonnage thereof," and the
ninetieth section of the act provides that the tax collector must
each year demand of the person in charge of the steamboat whether
the taxes have been paid, and if the person in charge fails to
produce a receipt therefor by a tax collector authorized to collect
such taxes, the collector having the list must at once proceed to
assess the same, and if the tax is not paid on demand, he must
seize such steamboat, &c., and after twenty days' notice, as
therein prescribed, shall sell the same, or so much thereof as will
pay the taxes and expenses for keeping and costs. [
Footnote 18]
Legislative enactments, where the language is unambiguous,
cannot be changed by construction, nor can the language be divested
of its plain and obvious meaning. Taxes levied under an enactment
which directs that a tax shall be imposed on steamboats at the rate
of one dollar per ton of the registered tonnage thereof, and that
the same shall be assessed and collected at the port where such
steamboats are registered, cannot, in the judgment of this Court,
be held to be a tax on the steamboat as property. On the contrary,
the tax is just what the language imports -- a duty of tonnage --
which is made even plainer when it comes to be considered that the
steamboats are not to be taxed at all unless they are "plying in
the navigable waters of the state," showing to a demonstration that
it is as instruments of commerce, and
Page 79 U. S. 218
not as property, that they are required to contribute to the
revenues of the state.
Such a provision is much more clearly within the prohibition in
question than the one involved in a recent case decided by this
Court in which it was held that a statute of a state enacting that
the wardens of a port were entitled to demand and receive, in
addition to other fees, the sum of five dollars for every vessel
arriving at the port, whether called on to perform any service or
not, was both a regulation of commerce and a duty of tonnage, and
that as such it was unconstitutional and void. [
Footnote 19]
Speaking of the same prohibition, THE CHIEF JUSTICE said in that
case that those words in their most obvious and general sense
describe a duty proportioned to the tonnage of the vessel -- a
certain rate oil each ton -- which is exactly what is directed by
the provision in the tax act before the Court, but he added that it
seems plain, if the Constitution be taken in that restricted sense,
it would not fully accomplish the intent of the framers, as the
prohibition upon the states against levying duties on imports or
exports would be ineffectual if it did not also extend to duties on
the ships which serve as the vehicles of conveyance, which was
doubtless intended by the prohibition of any duty of tonnage.
"It was not only a
pro rata tax which was prohibited,
but
any duty on the ship, whether a fixed sum upon its
whole tonnage or a sum to be ascertained by comparing the amount of
tonnage with the rate of duty."
Assume the rule to be as there laid down and all must agree
that
"the levy of the tax in question is expressly prohibited, as the
schedule shows that it is exactly proportioned to the registered
tonnage of the steamboats plying in the navigable waters of the
state."
Strong as the language of the Chief Justice is in that case, it
is no stronger than the language employed by the supreme court of
the state to which this writ of error was addressed in the case of
Sheffield v. Parsons, [
Footnote 20] in which the court in effect
Page 79 U. S. 219
says that no tax, custom, or toll can be levied "on the tonnage
of any vessel, without the consent of Congress, for any purpose."
Precisely the same rule was applied by that court to vessels duly
enrolled and licensed for the coasting trade, and which were
exclusively engaged in the towage and lighterage business in the
bay and harbor of Mobile, carrying passengers and freight between
the city and vessels at the anchorage below the bar. [
Footnote 21]
Some stress was laid in that case upon the circumstance that the
vessels taxed were engaged in transporting cargoes to and from
vessels engaged in foreign commerce bound to that port, but it is
quite clear that that circumstance is entitled to no weight, as the
prohibition extends to all ships and vessels entitled to the
privileges of ships and vessels employed in the coasting trade,
whether employed in commercial intercourse between ports in
different states or between different ports in the same state.
[
Footnote 22]
Formerly harbor-masters at the port of Charleston, by an
ordinance of that city, might exact one cent per ton, once in every
three months, of every steam packet or other vessel from certain
adjoining states trading steadily there and performing regular
successive voyages to that port, but when the question came to be
presented to the court of errors of that state, the judges
unanimously held that the exaction was a duty of tonnage and that,
as such, the provision was unconstitutional and void. [
Footnote 23]
Taxes in aid of the inspection laws of a state, under special
circumstances, have been upheld as necessary to promote the
interests of commerce and the security of navigation. [
Footnote 24]
Laws of that character are upheld as contemplating benefits and
advantages to commerce and navigation, and as altogether distinct
from imposts and duties on imports and exports and duties of
tonnage. Usage, it is said, has sanctioned
Page 79 U. S. 220
such laws where Congress has not legislated, but it is clear
that such laws bear no relation to the act in question, as the act
under consideration is emphatically an act to raise revenue to
replenish the treasury of the state, and for no other purpose, and
does not contemplate any beneficial service for the steamboats or
other vessels subjected to taxation.
Beyond question, the act is an act to raise revenue without any
corresponding or equivalent benefit or advantage to the vessels
taxed or to the shipowners, and consequently it cannot be upheld by
virtue of the rules applied in the construction of laws regulating
pilot dues and port charges. [
Footnote 25]
Attempt was made in the case of
Alexander v. Railroad
to show that the form of levying the tax was simply a mode of
assessing the vessels as property, but the argument did not
prevail, nor can it in this case, as the amount of the tax is
measured by the tonnage of the steamboats, and not by their value
as property.
Reference is made to the case of the
Towboat Company v.
Bordelon [
Footnote 26]
as asserting the opposite rule, but the Court is of a different
opinion, as the tax in that case was levied not upon the boat, but
upon the capital of the company owning the boat, and the court, in
delivering their opinion, said the capital of the company is
property, and the constitution of the state requires an equal and
uniform tax to be imposed upon it with the other property of the
state for the support of government.
For these reasons, the Court is of opinion that the state law
levying the taxes in this case is unconstitutional and void, that
the judgment of the state court is erroneous and that it must be
reversed, and having come to that conclusion, the Court does not
find it necessary to determine the other question.
Page 79 U. S. 221
II
. IN THE SECOND CASE.
Much discussion of the questions involved in this record will
not be required, as they are substantially the same as those
presented in the preceding case, which have already been fully
considered and definitely decided.
Submitted, as the case was, in the court below, on a demurrer to
the bill of complaint and on the answer of the respondent, it will
be necessary to refer to the pleadings to ascertain the nature of
the controversy, by which it appears that the complainants are a
corporation created by the Legislature of the State of Alabama,
having their place of business at Mobile in that state; that they
were the owners of twelve steamboats, as alleged in the bill of
complaint filed by them on the twelfth of October, 1867, in the
Chancery Court for that county, and that the respondent is the
collector of taxes for that county and a resident of the city of
Mobile.
Coming to the merits, the complainants allege that the
respondent, as such collector, pretends and insists that they are
liable under the laws of the state to pay a state tax of one dollar
per ton of the registered tonnage of the said several steamboats,
without any regard to their value as property; that be also claims
that he, as such collector, is authorized by law to collect that
amount of the complainants, and also another sum, equal to
seventy-five percent of the state tax, for the county, and also
another sum, equal to twenty-five percent of the state tax, as a
school tax, making in all a tax of two dollars per ton of the
registered tonnage of the said several steamboats, exclusive of the
fees of the collector and assessor, amounting to one dollar and
fifty cents on each of the said steamboats. All of the taxes in
controversy in this case were levied by virtue of an Act of the
legislature approved February 19, 1867, entitled "An act to
establish revenue laws for the state," and it is conceded that the
provisions, so far as respects this controversy, are the same as
the act under which the taxes were
Page 79 U. S. 222
levied in the preceding case. [
Footnote 27] Bills of the taxes, it is alleged, were
rendered to the complainants, but it is not necessary to enter into
these details except to say that the taxes were levied in the same
form as in the preceding case, and the complainants allege that the
respondent claims that he is authorized, in case they refuse to pay
the taxes, to seize the respective steamboats, and that he may
proceed, after twenty days' notice, to sell the same or as much
thereof as will pay the taxes, expenses, and costs. They, the
complainants, deny the legality of the taxes and allege that the
respondent, as such collector, threatens to seize the said
steamboats and to proceed to sell the same to pay the taxes,
expenses, and costs, which, they insist, would be contrary to
equity. Being without any remedy at law, as they allege, they ask
the interposition of a court of equity and allege that the taxes
are illegal upon two grounds, which are as follows
1. That the tax is a duty of tonnage, levied in violation of the
tenth section of the first article of the Constitution, and in
support of that allegation they allege that all the steamboats, at
the time the taxes were levied, were, and that they still are.,
duly enrolled and regularly licensed to engage in the coasting
trade under and in pursuance of the revenue laws of the United
States, and that all the duties imposed upon the steamboats by the
laws of the United States have been paid and discharged.
2. That the law of the state levying the taxes is in violation
of the act of Congress passed to enable the people of Alabama
Territory to form a constitution and state government, and for the
admission of the same into the Union, and of the ordinance passed
by the people of the territory accepting that provision. [
Footnote 28] Wherefore they pray for
process and for an injunction. Process was issued and served, and
the respondent appeared and filed an answer setting up the validity
of the taxes and alleging that the taxes were not intended to be a
tonnage duty, but simply and only a tax on
Page 79 U. S. 223
the personal property held by the complainants. He also demurred
to the bill of complaint, insisting that nothing alleged and
charged therein was sufficient to require a further answer. Prior
to the filing of the answer, the chancellor granted a temporary
injunction, and the cause having been subsequently submitted to the
court on bill and answer, the chancellor entered a decree making
the injunction perpetual, and the respondent appealed to the
supreme court of the state, where the injunction was dissolved and
the bill of complaint was dismissed. Dissatisfied with that decree,
the complainants sued out a writ of error and removed the cause
into this Court.
Different remedies are accorded to a complaining party in
different jurisdictions for grievances such as the one set forth in
the bill of complaint before the Court. Usually preventive remedies
are discountenanced as embarrassing to the just operations of the
government, and the party taxed is required to pay the tax and seek
redress in an action of assumpsit against the collector for money
had and received. Decided cases may also be referred to where it is
held that trespass will he against the assessor if it appear that
the whole tax was levied without authority, as in that state of the
case it is held that the assessor had no jurisdiction of the
subject matter. Preventive remedies, however, are accorded in some
of the states, and in cases brought here by writ of error under the
twenty-fifth section of the Judiciary Act, if no objection was
taken in the court below to the form of the remedy employed, and
none is taken in this Court, it may safely be assumed that the
proceeding adopted was regarded in the court below as an
appropriate remedy for the alleged grievance. Doubts upon that
subject cannot be entertained in this case, as the record shows
that both courts heard and determined the case upon the merits, and
all parties conceded throughout the litigation that the
complainants were entitled to the relief prayed in the bill of
complaint, if the taxes were illegal, and the law levying the same
was unconstitutional and void.
Page 79 U. S. 224
Power to tax for the support of the state governments exists in
the states independently of the federal government, and it may well
be admitted that where there is no cession of jurisdiction for the
purposes specified in the Constitution and no restraining compact
between the states and the federal government, the power in the
states to tax reaches all the property within the state which is
not properly denominated the instruments or means of the federal
government. [
Footnote
29]
Concede all that and still the Court is of the opinion that the
tax in this case is a duty of tonnage, and that the law imposing it
is plainly unconstitutional and void. Taxes, as the law provides,
must be assessed by the assessor in each county on and from the
following subjects and at the following rates, to-wit: "On all
steamboats &c. plying in the navigable waters of the state at
the rate of one dollar per ton of the registered tonnage thereof,"
which must be assessed and collected at the port where such
steamboats are registered, &c. [
Footnote 30] Copied as the provision is from the
enactment of the previous year, it is obvious that it must receive
the same construction, and as the tax is one dollar per ton, it is
too plain for argument that the amount of the tax depends upon the
carrying capacity of the steamboat, and not upon her value as
property, as the experience of everyone shows that a small steamer,
new and well built, may be of much greater value than a large one
badly built or in need of extensive repairs. Separate lists are
made for the county and school taxes, but the two combined amount
exactly to one dollar per ton, as in the levy for the state tax,
and the Court is of the opinion that the case falls within the same
rule as the case just decided.
Evidently the word "tonnage" in commercial designation means the
number of tons burden the ship or vessel will
Page 79 U. S. 225
carry, as estimated and ascertained by the official
admeasurement and computation prescribed by the public authority.
Regulations upon the subject are enacted by Parliament in the
parent country and by Congress in this country, as appears by
several acts of Congress. [
Footnote 31] Tonnage, says a writer of experience, has
long been an official term intended originally to express the
burden that a ship would carry, in order that the various dues and
customs which are levied upon shipping might be levied according to
the size of the vessel, or rather in proportion to her capability
of carrying burden. Hence the term, as applied to a ship, has
become almost synonymous with that of size. [
Footnote 32] Apply that interpretation to the
word tonnage as used in the tax act under consideration, and it is
as clear as anything can be in legislation that the tax imposed by
that provision is a tonnage tax, or duty of tonnage, as the phrase
is in the Constitution.
State authority to tax ships and vessels, it is supposed by the
respondent, extends to all cases where the ship or vessel is not
employed in foreign commerce or in commerce between ports or places
in different states. He concedes that the states cannot levy a duty
of tonnage on ships or vessels if the ship or vessel is employed in
foreign commerce or in commerce "among the states," but he denies
that the prohibition extends to ships or vessels employed in
commerce between ports and places in the same state, and that is
the leading error in the opinion of the supreme court of the state.
Founded upon that mistake, the proposition is that all taxes are
taxes on property, although levied on ships and vessels duly
enrolled and licensed, if the ship or vessel is not employed in
foreign commerce or in commerce among the states.
Ships or vessels of ten or more tons burden, duly enrolled and
licensed, if engaged in commerce on waters which are navigable by
such vessels from the sea, are ships and vessels of the United
States entitled to the privileges secured to
Page 79 U. S. 226
such vessels by the act for enrolling or licensing ships or
vessels to be employed in the coasting trade. [
Footnote 33]
Such a rule as that assumed by the respondent would incorporate
into the Constitution an exception which it does not contain. Had
the prohibition in terms applied only to ships and vessels employed
in foreign commerce or in commerce among the states, his
construction would be right, but courts of justice cannot add any
new provision to the fundamental law, and if not, it seems clear to
a demonstration that the construction assumed by the respondent is
erroneous.
Judgment reversed with costs, and the cause remanded for
further proceedings in conformity to the opinion of the
Court.
[
Footnote 1]
See Act of July 18th, 1866, § 28, 14 Stat. at Large
185.
[
Footnote 2]
It is barely necessary to note that an additional ground of
defense to the tax was taken, in the fact that by the act of
Congress admitting Alabama into the Union, it is declared
"that all navigable waters within the said state shall forever
remain public highways, free to the citizens of said state, and of
the United States, without any tax, duty, impost, or toll therefor,
imposed by the said state."
This ground not being passed upon by this Court, need not be
adverted to further.
[
Footnote 3]
<|10 Pet. 160|>Elliott v. Swartwout, 10 Pet. 160;
<|13 Pet. 267|>Bend v. Hoyt, 13 Pet. 267.
[
Footnote 4]
Sess.Acts 1846, p. 7.
[
Footnote 5]
1 Stat. at Large 77.
[
Footnote 6]
Ib., 305.
[
Footnote 7]
3 Stat. at Large 492.
[
Footnote 8]
13
id. 70;
ib., 444.
[
Footnote 9]
Alexander v. Railroad, 3 Strobhart 598.
[
Footnote 10]
<|8 How. 82|>Nathan v. Louisiana, 8 How. 82;
Howell v. Maryland, 3 Gill 14.
[
Footnote 11]
<|7 How. 402|>Passenger Cases, 7 How. 402;
<|17 How. 598|>Hays v. The Pacific Mail Steamship
Co., 17 How. 598.
[
Footnote 12]
<|9 Wheat. 202|>Gibbons v. Ogden, 9 Wheat. 202;
<|22 How. 238|>Sinnot v. Davenport, 22 How. 238;
<|22 How. 245|>Foster v. Davenport, 22 How. 245;
Perry v. Torrence, 8 Ohio 524.
[
Footnote 13]
<|7 How. 447|>Passenger Cases, 7 How. 447, <|7
How. 481|>481.
[
Footnote 14]
<|9 Wheat. 193|>Gibbons v. Ogden, 9 Wheat.
193.
[
Footnote 15]
1 Stat. at Large 287;
ib., 305; 3 Kent (11th ed.)
203.
[
Footnote 16]
<|9 Wheat. 212|>Gibbons v. Ogden, 9 Wheat.
212.
[
Footnote 17]
<|12 Wheat. 445|>Brown v. Maryland, 12 Wheat.
445;
<|11 Pet. 134|>New York v. Miln, 11 Pet. 134;
People v. Brooks, 4 Denio 476;
Steamboat Co. v.
Livingston, 3 Cowen 743.
[
Footnote 18]
Sess.Acts 1866, pp. 7, 31.
[
Footnote 19]
<|6 Wall. 34|>Steamship Co. v. Port Wardens, 6
Wall. 34.
[
Footnote 20]
Stewart & Porter, 804.
[
Footnote 21]
Lott v. Morgan, 41 Ala. 250.
[
Footnote 22]
People v. Saratoga & Rensselaer Railroad Company,
15 Wend. 131;
Steamboat Company v. Livingston, 3 Cowen
743.
[
Footnote 23]
Alexander v. Railroad, 3 Strobhart 598.
[
Footnote 24]
<|12 How. 314|>Cooley v. Port Wardens, 12 How.
314.
[
Footnote 25]
State v. Charleston, 4 Rich., S.C. 286;
Benedict v.
Vanderbilt, 1 Robt. N.Y. 200.
[
Footnote 26]
7 La.Ann. 195.
[
Footnote 27]
Sess. Acts 1867, p. 645; Revised Code 1867, p. 169, art. ii, §
434, p. 11.
[
Footnote 28]
3 Stat. at Large 492.
[
Footnote 29]
<|8 How. 82|>Nathan v Louisiana, 8 How. 82;
<|4 Wheat. 429|>McCulloch v. Maryland, 4 Wheat. 429;
<|6 Wall. 604|>Society for Savings v. Coite, 6 Wall.
604;
<|12 Wheat. 448|>Brown v. Maryland, 12 Wheat.
448;
<|2 Pet. 467|>Weston v. Charleston, 2 Pet.
467.
[
Footnote 30]
Revised Code 169.
[
Footnote 31]
1 Stat. at Large 305; 13
id. 444.
[
Footnote 32]
Homan's Com. & Nav., Tonnage.
[
Footnote 33]
1 Stat. at Large 205;
ib., 287.