1. An ordinance of the City of New Orleans which demands of all
steamboats which shall moor or land in any part of the port of New
Orleans a sum measured by the tonnage of the vessel is a tonnage
tax within the meaning of the federal Constitution, and therefore,
void.
2. It is a tax for the privilege of stopping in the port of New
Orleans, and cannot be justified under the plea that it is intended
as a compensation for the use of wharves built by the city.
3. For the use of wharves, piers, and similar structures,
whether owned by individuals or by the city or other corporation, a
reasonable compensation may be charged to the vessel, to be
regulated in the interest of the public by the state legislature or
city council.
4. But in the exercise of this right, care must be taken that it
is not made to cover a violation o� the federal Constitution, which
prohibits the states to lay any duty of tonnage.
5. Any duty or tax or burden imposed under the authority of the
states which is in its essence a contribution claimed for the
privilege of arriving and departing from a port of the United
States and which is assessed on a vessel according to its carrying
capacity is a violation of that provision unless the consent of
Congress be obtained.
The Constitution of the United States ordains as follows:
[
Footnote 1]
"Congress shall have power to regulate commerce with foreign
nations and
among the several states and with the Indian
tribes. No state shall, without the consent of Congress, lay any
duty of tonnage. "
Page 87 U. S. 578
With these provisions in force as fundamental law, the City of
New Orleans made an ordinance as follows:
"From and after the 1st day of January, 1853, the levee dues on
all steam boats
which shall moor or land in any part of the
port of New Orleans shall be fixed as follows; ten cents per
ton if in port not exceeding five days, and five dollars per day
after said five days shall have expired, provided that boats
arriving and departing more than once in each week shall pay only
seven cents per ton each trip."
This ordinance was subsequently amended by the substitution of
the words "levee and wharfage dues" for the words "levee dues," and
by providing further that "boats making three trips per week shall
pay five cents per ton each trip."
The length of both shores of the Mississippi embraced by the
port of New Orleans is at least twenty-two miles. The entire
portion of the shore on which wharves had been built, was at most
two miles; less than one-tenth of the wharved space.
In this state of things and under the ordinance above-mentioned,
the city had claimed and collected of one Cannon for several years
a tax on his steamboat, the
R. E. Lee, and claiming it
again Cannon filed a petition to enjoin such further collection,
and also to recover back the money already paid. The ground of his
petition was, that under each of the above-quoted clauses of the
Constitution the ordinances were void. The supreme court of the
state held the ordinance valid, and dismissed the petition. Its
view was thus-expressed:
"The same points that are made in this case, supported by the
same line of argument as here, were presented in the case of
First Municipality v. Pease, [
Footnote 2] and were decided adversely to the position
taken by the plaintiff in this case."
"We think the views there expressed correct."
"The 'levee dues,' under consideration, are not a 'duty on
tonnage,' nor a regulation of or burden on commerce, nor a duty
upon vessels plying between the states, within the contemplation of
the Constitution of the United States, but charges
Page 87 U. S. 579
as compensation for commercial facilities furnished by the city,
and for which, by the common consent of mankind, compensation is
paid. [
Footnote 3] The question
of the right to impose such charges, whether under the name of
wharfage or levee dues, being judicially determined, the manner and
extent of its exercise are left to those to whom the management of
the municipal affairs are entrusted, under their responsibility to
those whom they represent. The aggregate of charges may possibly be
largely in excess of the actual necessary expenses during one year,
and the very next be insufficient to meet. This will result from
the nature of the river banks, the action of the river current, the
quality and nature of materials used, the fluctuations of commerce;
and many other causes unforeseen and irregular in their operation,
and all which show the impossibility of judicial control and
regulation of the subject."
From the decree of dismissal, Cannon brought the case here.
Page 87 U. S. 580
MR. JUSTICE MILLER delivered the opinion of the Court.
This writ of error is based upon the proposition that the city
ordinance is in conflict with two clauses of the Constitution of
the United States -- namely that which grants to Congress the right
to regulate commerce with foreign nations, among the states, and
with the Indian tribes, and that which forbids the states to levy
any duty of tonnage without the consent of Congress.
We shall only consider the question raised by the latter
clause.
It is argued in support of the validity of the ordinance that
the money collect under it is only a compensation for the use of
the wharves which are owned by the city, and which have been built
and are kept in repair by the city corporation.
Under the evidence in this case of the condition of the levee
and banks of the Mississippi River within the limits of the city,
to which the language of the ordinance must be applied, this
contention cannot be sustained. It is in proof that of the twenty
miles and more of the levee and banks of the Mississippi within the
city, not more than one-tenth has any wharf, and that vessels land
at various places where no such accommodations exist. The language
of the ordinance covers landing anywhere within the city limits.
The tax is, therefore, collectible for vessels which land at any
point on the banks of the river, without regard to the existence of
the wharves. The tax is also the same for a vessel which is moored
in any part of the port of New Orleans, whether she ties up to a
wharf or not, or is located at the shore or in the middle of the
river. A tax which is, by its terms, due from all vessels arriving
and stopping in a port, without regard to the place where they may
stop, whether it be in the channel of the stream, or out in a bay,
or landed at a natural river bank, cannot be treated as a
compensation for the use of a wharf. This view is additionally
enforced if, as stated by counsel for the plaintiff, in their
argument, the supreme court of the state has decided that, under
the Act of 1843
Page 87 U. S. 581
of the Louisiana Legislature, no wharfage tax or duty can be
levied or collected by the city.
We are of opinion that upon the face of the ordinance itself, as
applied to the recognized condition of the river and its banks
within the city, the dues here claimed cannot be supported as a
compensation for the use of the city's wharves, but that it is a
tax upon every vessel which stops, either by landing or mooring, in
the waters of the Mississippi River within the City of New Orleans,
for the privilege of so landing or mooring.
In this view of the subject, as the assessment of the tax is
measured by the tonnage of the vessel, it falls directly within the
prohibition of the Constitution, namely "that no state shall,
without the consent of Congress, lay any duty of tonnage." Whatever
more general or more limited view may be entertained of the true
meaning of this clause, it is perfectly clear that a duty or tax or
burden imposed under the authority of the state, which is, by the
law imposing it, to be measured by the capacity of the vessel, and
is in its essence a contribution claimed for the privilege of
arriving and departing from a port of the United States, is within
the prohibition.
There have been several cases before this Court involving the
construction of this provision. The more recent and well considered
of these are
Steamship Company v. Portwardens, [
Footnote 4]
State Tonnage Tax
Cases, [
Footnote 5] and
Peete v. Morgan. [
Footnote
6]
In the first of these cases, the late Chief Justice, who
delivered the opinion, seemed inclined to guard against too narrow
a construction of the clause, lest its spirit and purpose might be
evaded. He says,
"that in the most obvious and general sense, it is true, the
words describe a duty proportioned to the tonnage of the vessel; a
certain rate on each ton. But it seems plain that in this
restricted sense, the constitution provision would not fully
accomplish its intent. The general prohibition against laying
duties on
Page 87 U. S. 582
imports or exports would have been ineffectual if it had not
been extended to duties on the ships which serve as the vehicles of
conveyance. This extension was doubtless intended by the
prohibition of any duty on 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."
The other two cases fully sustain the proposition as we have
stated it.
In saying this we do not understand that this principle
interposes any hindrance to the recovery from any vessel landing at
a wharf or pier owned by an individual or by a municipal or other
corporation, a just compensation for the use of such property. It
is a doctrine too well settled, and a practice too common and too
essential to the interests of commerce and navigation to admit of a
doubt, that for the use of such structures, erected by individual
enterprise, and recognized everywhere as private property, a
reasonable compensation can be exacted. And it may be safely
admitted also that it is within the power of the state to regulate
this compensation, so as to prevent extortion, a power which is
often very properly delegated to the local municipal authority.
Nor do we see any reason why, when a city or other municipality
is the owner of such structures, built by its own money, to assist
vessels landing within its limits in the pursuit of their business,
the city should not be allowed to exact and receive this reasonable
compensation as well as individuals. But in the exercise of this
right care must be had that it is not made to cover a violation of
the federal Constitution in the point under consideration
We are better satisfied with this construction of the
Constitution from the fact that this is one of the few limitations
of that instrument of the power of the states which is not
absolute, but which may be removed wholly or modified by the
consent of Congress.
The cases which have recently come before this Court in which
the state by itself or by one of its municipalities has
Page 87 U. S. 583
attempted to levy taxes of this character, clearly within the
letter and the spirit of the constitutional prohibition, show the
necessity of a rigid adherence to the demands of that instrument.
If hardships arise in the enforcement of this principle, and the
just necessities of a local commerce require a tax which is
otherwise forbidden, it is presumed that Congress would not
withhold its assent if properly informed and its consent
requested.
This is a much wiser course, and Congress is a much safer
depositary of the final exercise of this important power than the
ill regulated and overtaxed towns and cities, which are not likely
to look much beyond their own needs and their own interests.
We are of opinion that the ordinance under which the levee dues
were assessed upon the plaintiff's vessel is unconstitutional and
void.
Judgment reversed and the case remanded to the Supreme Court
of Louisiana for further proceedings in conformity to this
opinion.
[
Footnote 1]
Article 1, §§ 8, 10.
[
Footnote 2]
2 Annual 540.
[
Footnote 3]
Worsley v. Second Municipality, 9 Rob. 332;
Gibbons v.
Ogden, 9 Wheat. 235.
[
Footnote 4]
73 U. S. 6 Wall.
31.
[
Footnote 5]
79 U. S. 12
Wall. 212.
[
Footnote 6]
86 U. S. 19 Wall.
581.
