1. The fourth section of the act of the Legislature of Illinois
passed in 1819, touching a ferry across the Mississippi River from
a place in Illinois to the City of St. Louis, Missouri,
declares:
"That the ferry established shall be subject to the same taxes
as are now or hereafter may be imposed on other ferries within this
state and under the same regulations and forfeitures."
Held that the section provides for equality of taxation
-- that is to say that the property of the ferry company shall be
valued and taxed by the same rule as other like property and be
subject to the same exactions and forfeitures, but the company is
not exempted from any license tax on its ferry boats which the
state or a municipal corporation thereunto authorized might
impose.
2. The power to license is a police power, although it may also
be exercised for the purpose of raising revenue.
3. A state has the power to impose a license fee, either
directly or through one of its municipal corporations, upon the
ferrykeepers living in the state, for boats which they own and use
in conveying from a landing in the state passengers and goods
across a navigable river to a landing in another state.
4. The levying of a tax upon such boats, although they are
enrolled and licensed under the laws of the United States, or the
exaction of a license fee by
Page 107 U. S. 366
the state within which the property subject to the exaction has
its
situs, is not a regulation of commerce within the
meaning of the Constitution of the United States, nor is such tax
or fee a duty of tonnage if it be not graduated by the tonnage of
the boats or by the number of times they cross the river or land
within the limits of the state.
This was an action of debt brought in the City Court of East St.
Louis, St. Claire County, Illinois, by the City of East St. Louis
against a corporation of the State of Illinois known as the Wiggins
Ferry Company to recover from it license money imposed by an
ordinance of the city. The ferry company pleaded
nil
debit. By consent of parties, the cause was submitted to the
court on an agreed statement of facts which was as follows:
Under and by authority of an act of the Legislature of Illinois
entitled "An act to authorize Samuel Wiggins to establish a ferry
upon the waters of the Mississippi," approved March 2, 1819, and
amendatory acts, Wiggins and his associates did establish,
maintain, and operate a ferry upon and over the Mississippi River
between the City of St. Louis, in the State of Missouri, and the
Illinois shore of the river opposite to the City of St. Louis, now
within the limits of the City of East St. Louis, from about the
time of the passage of the act of 1819 until the organization of
the Wiggins Ferry Company in the year 1853, under and by authority
of an act of the legislature entitled "An act to incorporate the
Wiggins Ferry Company," approved February 11, 1853. In the year
1853, under authority of said act of 1853, the successors, heirs,
and assigns of Samuel Wiggins, the then owners of the ferry and
ferry franchise, and of all the rights, privileges, and immunities
granted to Samuel Wiggins and his successors, heirs, and assigns,
by proper deeds and assignments conveyed the same to defendant,
they having become the stockholders of said ferry company, and from
thence hitherto defendant has remained the lawful owner of said
ferry, ferry franchise, rights, privileges, and immunities,
including the ferry boats, wharf boats, wharfs, and landings in use
by said ferry, and the rights, privileges, immunities, and
franchises granted by said act of 1853, and amendatory acts, and
under and by authority of all said grants,
Page 107 U. S. 367
franchises, rights privileges, and immunities defendant has
maintained and operated said ferry from thence hitherto. The
Mississippi River at the point between the states of Illinois and
Missouri, upon and over which the said ferry is established and
operated, has, under the laws of the United States, and the rules
and regulations established thereunder, by the duly authorized
officers of the United States, been declared to be, and is, a
navigable river within the purview of such laws, and under said
laws, rules, and regulations, and especially in conformity to the
Revised Statutes of the United Statutes, title L, "Regulation of
vessels in domestic commerce," the defendant for the last twenty
years and more has been required to, and has had all its ferry
boats, all of which are more than twenty tons burden, regularly
enrolled and annually inspected and licensed at an annual cost of
from seventy-five to one hundred dollars per boat, according to
tonnage and number of men employed on each. The defendant over
since its organization has paid to the County of St. Clair, as a
ferry license, the sum of three hundred dollars per annum, under
the laws of Illinois and the requirements of the county
authorities, and has owned the wharfs and landing used by said
ferry in the City of East St. Louis, which is graded and paved at
its own expense, and it has never used or employed any wharf or
landing belonging to the City of East St. Louis. Defendant ever
since its organization has annually listed for taxation, and paid
all taxes legally assessed upon all its property; all its personal
property, including its boats and franchise, and all its real
estate which is situated within the city limits, and including its
wharfs and landings, having been taxed by said City of East St.
Louis ever since the organization of said city.
The Illinois & St. Louis Ferry Company and the St. Louis
& Cahokia Ferry Company own and operate ferries over and across
the Mississippi River between the said City of St. Louis and the
Illinois shore, but without the limits of the City of East St.
Louis, both in active competition with the ferry of defendant,
neither of which are or ever have been required to pay any sum
whatever for license to either the City of East St. Louis or any
other municipal corporation except the County of St. Clair, to
which they both pay license fees.
Page 107 U. S. 368
The St. Louis Bridge Company, which owns and operates a bridge
over the Mississippi River between said cities St. Louis and East
St. Louis, which has been in active competition with defendant ever
since said bridge was opened for use in July, 1874, is required to
pay no license fee whatever to the City of East St. Louis. On June
1, 1868, the City Council of the City of East St. Louis duly passed
and published "Ordinance No. 70," parts of which are as
follows:
"SEC. 1. No person, firm, company, or corporation shall be
engaged in, prosecute, or carry on any trade, business, calling, or
profession hereinafter mentioned without first having obtained a
license therefor."
"
* * * *"
"SEC. 10. Keepers of ferries shall pay fifty dollars license for
each boat plying between this city and the opposite bank of the
river for one year, or twenty-five dollars for each boat for six
months."
In compliance with the above ordinance, defendant paid said city
a license fee fifty dollars per annum on each of its ferry boats,
its last license thereunder being from May 1, 1874, to May 1,
1875.
On October 7, 1878, said city council passed ordinance No. 317,
which is substantially the same as ordinance No. 70, except that it
fixes the license fee at $100 per annum for each boat. On May 1,
1875, and from thence hitherto, the defendant, in the operation of
its ferry between said cities of St. Louis and East St. Louis, has
employed eight ferry boats (including two tugs and one transfer
boat), and since said May 1, 1875, has not taken out any license
nor paid any license fee to said City of East St. Louis. Upon the
facts here stated and the laws applicable thereto, the court shall
determine the right of plaintiff to demand and the liability of
defendant to pay the license fee fixed by said ordinance, or either
of them, and render judgment accordingly, and this without regard
to the pleadings in the case. The acts of the legislature, and the
laws, rules, and regulations of the United States, and the
enrollments, inspections, and licenses herein mentioned or referred
to, and the charter and ordinances of said City of East St.
Page 107 U. S. 369
Louis, or copies thereof, may be used and referred to as a part
of the record in this case.
So much of the act of 1819, referred to in the agreed statement
of facts, entitled "An act to authorize Samuel Wiggins to establish
a ferry upon the waters of the Mississippi River," as is pertinent
in this case is as follows:
"SEC. 1. That Samuel Wiggins, his heirs and assigns, be, and
they are hereby, authorized to establish a ferry on the waters of
the Mississippi near the Town of Illinois in this state, and to run
the same from lands at the said place that may belong to him."
"SEC. 4. That the ferry established shall be subject to the same
taxes as are now or hereafter may be imposed on other ferries
within this state, and under the same regulations and
forfeitures."
So much of the Act of February 11, 1853, "to incorporate the
Wiggins Ferry Company" as is material to this case, is as
follows:
After a preamble, which recited the above-mentioned act of 1819
and acts amendatory thereof, it was enacted:
"SEC. 1. That [certain persons, naming them] and their
associates, successors, and assigns are hereby created a body
corporate and politic by the name and style of the 'Wiggins Ferry
Company,' . . . and the said company shall have full power . . . to
purchase, hold, use, and enjoy the ferry franchise granted to
Samuel Wiggins, his heirs and assigns, by the act referred to in
the preamble of this act, . . . to keep a ferry or ferries at and
from any point or points on said land across the Mississippi River
to St. Louis in the State of Missouri, and use and enjoy all the
rights, privileges, franchises, and emoluments recited in the
preamble of this act as having been heretofore granted to the said
Samuel Wiggins, his heirs and assigns."
"SEC. 7. . . .
Provided that nothing in this act
contained shall be construed to create any private right so as to
interfere with the powers of any existing municipal corporation or
with the right of the legislature at any time hereafter to create
municipal corporations within the limits herein specified, and to
confer upon said corporations all such powers of police . . . as
may be usually or properly confided to a city corporation under the
Constitution of Illinois. "
Page 107 U. S. 370
The authority to pass the ordinance under which the plaintiff
claimed license money from the defendant was its charter, passed in
1869, which empowered it "to regulate, tax, and license ferry
boats." Private Laws of Illinois, 1869, vol. i, p. 893.
Upon these facts the court found the issues for the plaintiff,
and assessed its damages at $1,600, for which sum it rendered
judgment against the defendant.
The case was taken by the appeal of defendant to the Appellate
Court of the fourth district of Illinois, by which the judgment of
the city court of East St. Louis was affirmed. The defendant then
carried the case by appeal to the Supreme Court of Illinois, which
affirmed the judgment of the Appellate Court.
To obtain a reversal of this judgment of the supreme court, the
defendant has brought the case to this Court by writ or error.
MR. JUSTICE WOODS delivered the opinion of the Court.
The first contention of the plaintiff in error is that the
fourth section of the act of 1819, which declared that the Wiggins
ferry should be subject to the same taxes as were then or might
thereafter be imposed on other ferries within the state and under
the same regulations and forfeitures, and the charter of the
Wiggins Ferry Company, which authorized said company to use and
enjoy the ferry franchise granted to Samuel Wiggins and to use and
enjoy all the rights, privileges, and emoluments recited in the
preamble of the act as having been granted to Wiggins and his heirs
and assigns, constituted a contract between the ferry company and
the state by which the power to tax the ferry company was limited
to the imposition of the same taxes as were then or might
thereafter be imposed on other ferries within the state, and that
the charter of the City of East St. Louis, which authorized the
city to regulate, tax, and license ferry boats, and the ordinance
of the city imposing a license tax on the ferry boats of the
company, impaired the obligation of the contract, and was therefore
unconstitutional and void.
Page 107 U. S. 371
We are of opinion that the charter of the company cannot be so
construed as to exempt it from any taxation which the state might
itself see fit to impose, or authorize to be imposed, by the City
of East St. Louis.
It is a rule of interpretation that every grant from the
sovereign authority is in case of ambiguity to be construed
strictly against the grantee and in favor of the government.
Charles River Bridge v. Warren
Bridge, 11 Pet. 420;
Mills v.
St. Clair County, 8 How. 569;
Attorney General
v. Boston, 123 Mass. 460.
This rule has been frequently applied by this Court in cases
where exemption from taxation was set up by corporations under the
provisions of their charters. In
Philadelphia & Wilmington
Railroad Co. v. Maryland, 10 How. 376, it was
declared that "the taxing power of a state is never presumed to be
relinquished unless the intention to relinquish is declared in
clear and unambiguous terms." and in
Jefferson
Branch v. Skelly, 1 Black 436, it was said that
"the language of this Court has always been cautious and
affirmative of the right of the state to impose taxes, unless it
has been relinquished by unmistakable words, clearly indicating the
intention of the state to do so."
So in
Railroad Company v. Commissioners, 103 U. S.
1, THE CHIEF JUSTICE, speaking for the Court,
declared:
"Grants of immunity from taxation are never to be presumed. On
the contrary, all presumptions are the other way, and unless an
exemption is clearly established all property must bear its just
share of the burdens of taxation. These principles are elementary,
and should never be lost sight of in cases of this kind."
To the same effect,
see Railroad Companies v. Gaines,
97 U. S. 697.
So in
Bank v. Tennessee, 104 U.
S. 493, this Court declared, speaking by MR. JUSTICE
FIELD:
"That statutes imposing restrictions upon the taxing power of a
state, except so far as they tend to secure uniformity and equality
of assessment, are to be strictly construed is a familiar rule.
Against the power nothing is to be taken by inference or
presumption. When a doubt arises as to the existence of the
restriction, it is to be decided in favor of the state. "
Page 107 U. S. 372
If any serious doubt could arise concerning the interpretation
of sec. 4 of the act of 1819, which the plaintiff in error contends
was incorporated as a provision of its charter, the authorities
cited would settle that doubt in favor of the right of the City of
East St. Louis to impose the license tax complained of.
But we are of opinion that the meaning of the section is not
doubtful. The ferry of Wiggins had only one of its landings in the
State of Illinois; the other was in the State of Missouri. The
evident purpose of the section was to prevent the ferry, by reason
of that circumstance, from escaping the same burdens of taxation as
were imposed on ferries entirely within the state, and not to limit
the taxing power of the legislature. It declares that the ferry of
Wiggins shall be subject to the same taxes which were then or might
thereafter be imposed on other ferries within the state, and under
the same regulations and forfeitures, but it does not intimate that
the state shall not impose on it such other taxes within its
constitutional power as to it may seem fit.
The most favorable construction for the plaintiff in error that
could be placed upon its charter is that it provided for equality
of taxation -- that is to say that the property of the ferry
company should be valued and taxed by the same rule as other like
property, and that the same exactions and forfeitures only as were
imposed on like property, similarly situated, should be imposed on
it. It certainly cannot be contended that its ferry on one of the
great arteries of commerce, crossing the Mississippi River, and
having each of its landings in a city, should only pay the same
identical taxes and license fees as a country ferry over an
inconsiderable stream. All that could be reasonably claimed under
its charter is that it should be subjected to no higher state and
municipal taxation and no greater license fees than other like
property similarly situated. Giving the charter this construction,
the plaintiff in error has no ground for complaint. It is not shown
that the state and county taxation bears unequally on the ferry
company. The ordinance of the City of East St. Louis makes no
discrimination in favor of any other ferry similarly situated which
it is authorized to regulate, tax, and license. The same license
fee is
Page 107 U. S. 373
exacted of all keepers of ferries within the corporate limits as
are imposed upon the plaintiff in error.
But the contention of the plaintiff in error seems to be that,
under the terms of its charter, it is exempted from the imposition
by the City of East St. Louis of any license fee whatever. So far
from this being the fact, the charter, by the proviso to sec. 1,
expressly reserved the power of any existing municipal corporation,
or any that might be thereafter created within the limits of the
ferry company's lands, to exercise all such powers of police as
might be properly conferred on a city corporation. The power to
license is a police power, although it may also be exercised for
the purposes of raising revenue. We cannot say as a matter of law
that when a municipal corporation is authorized "to regulate, tax,
and license ferry boats," the imposition of a license fee of $100
per boat is not within the power to regulate and license, and is
consequently not within the police power.
It follows therefore that the ordinance of the City of East St.
Louis and the charter of the city, by which the ordinance is
authorized, do not impair the obligation of any contract between
the ferry company and the state.
The next question presented by the assignments of error relates
to the power of the state to impose a license fee either directly
or through one of its municipal corporations upon the keepers of
ferries living in the state, for boats owned by them and used in
ferrying passengers and goods from a landing in the state, across a
navigable river, to a landing in another state. It is insisted by
the plaintiff in error that such an exaction is forbidden by the
Constitution of the United States 1, because it is a regulation of
commerce between the states and therefore, within the exclusive
power of Congress, and 2, because it is a duty of tonnage, which
the state are forbidden by the Constitution to lay without the
consent of Congress.
In our opinion, neither of these contentions is well founded.
The levying of a tax upon vessels or other watercraft, or the
exaction of a license fee by the state within which the property
subject to the exaction has its
situs, is not a regulation
of commerce within the meaning of the Constitution of the
Page 107 U. S. 374
United States. Gibbons v.
Odgen, 9 Wheat. 1;
Passenger
Cases, 7 How. 283;
Morgan v.
Parham, 16 Wall. 471. In
Gibbons v. Ogden,
it was settled that the clause of the Constitution conferring on
Congress the power to tax, and the clause regulating and
restraining taxation, are separate and distinct from the clause
granting the power to Congress to regulate commerce. In all of the
cases just cited, the right of a state to tax a ship owned by one
of her citizens and having its
situs within the state,
although used in foreign commerce or in commerce between the
states, was distinctly recognized. Thus, in
Passenger
Cases, it was said by Mr. Justice McLean:
"A state cannot regulate foreign commerce, but it may do many
things which more or less affect it. It may tax a ship or other
vessel used in commerce the same as other property owned by its
citizens. A state may tax the stages in which the mail is
transported, but this does not regulate the conveyance of the mail
any more than taxing a ship regulates commerce, and yet, in both
instances, the tax on the property in some degree affects its
use."
In the case of
Transportation Company v. Wheeling,
99 U. S. 273, this
Court sustained a tax levied by the City of Wheeling upon
steamboats used in navigating the Ohio River between that city and
Parkersburgh, and the intermediate places on both sides of the
river in the states of West Virginia and Ohio, the company whose
property the boats were having its principal office in
Wheeling.
The exaction of a license fee is an ordinary exercise of the
police power by municipal corporations. When, therefore, a state
expressly grants to an incorporated city, as in this case, the
power "to license, tax, and regulate ferries," the latter may
impose a license tax on the keepers of ferries, although their
boats ply between landings lying in two different states, and the
act by which this exaction is authorized will not be held to be a
regulation of commerce.
And in the case of
Fanning v.
Gregoire, 16 How. 524, it was declared by this
Court, speaking of the charter of Fanning to ferry across the
Mississippi River at Dubuque, that the exercise of commercial power
by Congress did not interfere with the police power of the states
in granting ferry licenses.
Page 107 U. S. 375
In the case of
Conway v. Taylor's
Ex'rs, 1 Black 603, Mr. Justice Swayne, speaking
for the Court, in reference to a ferry established across the Ohio
River, between the States of Ohio and Kentucky, declared that the
power to establish and regulate ferries did not belong to Congress
under the power to regulate commerce, but belonged to the states,
and lay within the scope of that immense mass of undelegated powers
reserved by the Constitution to the states.
The authorities cited settle beyond controversy that the
ordinance of the City of East St. Louis, imposing upon the keepers
of ferries within its limits, and the act of the legislature by
which such ordinance was authorized, do not invade the exclusive
power of Congress to regulate commerce conferred on it by the
Constitution.
It is next insisted by plaintiff in error that the license fee
exacted by the ordinance of the City of East St. Louis is a tonnage
tax, which the states are forbidden to lay without the consent of
Congress. This contention has no ground to rest on. In the first
place, the license fee is levied, not on the ferry boat, but on the
ferrykeeper. The first section of the ordinance declares that no
person shall carry on any trade, business, calling, or profession
thereinafter mentioned without having first obtained a license
therefor, and the ordinance, after having enumerated many other
trades and callings, and fixed the license fee for carrying them
on, declares, in sec. 10, that keepers of ferries shall pay $100
license fee for each boat plying between the city and the opposite
bank of the river.
The power of the State of Illinois to authorize any city within
her limits to impose a license tax on trades or callings generally,
especially those which are
quasi-public, cannot be
disputed. Draymen may be compelled to pay a license tax on every
dray owned by them, hackmen on every hack, tavernkeepers on their
taverns in proportion to the number of the rooms which they keep
for the accommodation of guests. We do not think that the
Constitution of the United States, by the section which prohibits a
state from laying a duty of tonnage, protects the keeper of a ferry
from a similar tax upon the boats which he employs. Whether a
license fee is exacted
Page 107 U. S. 376
under the power to regulate or the power to tax is a matter of
indifference if the power to do either exists. The license fee
exacted is, in effect, laid upon the business of keeping a ferry,
for it is not laid upon all boats owned by the ferrykeeper, but
only on those plying between the two banks of the river, and is
graduated by the number of boats used by him.
The exaction of this license fee is identical in kind with the
imposition upon a proprietor of hacks and express wagons of a
specified sum for every vehicle owned by him and used in carrying
passengers or baggage and merchandise from East St. Louis to the
City of St. Louis, by way of the bridge connecting those
cities.
In the second place, the amount of the license fee is not
graduated by the tonnage of the ferry boats. It is the same whether
the boats are of large or small carrying capacity. This, although
not a conclusive circumstance,
Steamship Company v. Port
Wardens, 6 Wall. 31, is one of the tests applied to
determine whether a tax is a tax on tonnage or not,
State Tonnage Tax
Cases, 12 Wall. 212;
Peete
v. Morgan, 19 Wall. 581;
Cannon v.
New Orleans, 20 Wall. 577. If the same license fee
had been exacted of the keeper of a ferry across a navigable stream
entirely within the State of Illinois -- Chicago River, for
instance -- it would scarcely be contended that it fell within the
constitutional prohibition. The fact that in this case the ferry
crosses a river which divides two states cannot change the nature
of the exaction.
As we have already said, the burden imposed by the ordinance is
not measured by the tonnage of the ferry boats; it is not measured
by the number of times they cross the Mississippi River or land at
the City of East St. Louis. We are of opinion, therefore, that, it
is not a duty of tonnage, nor is it in its essence a contribution
claimed for the privilege of using a navigable river of the United
States, or of arriving or departing from one of its ports, and is
therefore not prohibited by the Constitution of the United
States.
Counsel for plaintiff in error contend that if the power of the
City of East St. Louis to exact a license fee of $100 from every
ferry boat is conceded, the city could double or treble the fee at
will. It is sufficient to say, in reply to this, that it does
not
Page 107 U. S. 377
follow from the fact that a power is liable to abuse, that it
does not exist. If the power is abused, the remedy is with the
legislature.
Lastly, it is contended by the plaintiff in error that the fact
that the boats of the ferry company have been enrolled, inspected,
and licensed under the laws of the United States, is a protection
against the exaction of any license fee by the state or by its
authority.
In the case of
Gibbons v. Ogden, ubi supra, it was said
by the court that inspection laws, quarantine laws, health laws of
every description, as well as laws for regulating the internal
commerce of a state, and those which respect turnpike roads,
ferries, etc., are parts of the immense mass of legislation which
embraces everything within the territory of a state not surrendered
to the general government. In the subsequent case of
Conway v.
Taylor, ubi supra, this Court, relying as authority on the
declaration just cited, held that the fact that Conway had caused
his ferry boat to be enrolled and licensed, under the laws of the
United States at the custom house in Cincinnati, to carry on the
coasting trade, did not authorize him to carry on the business of a
ferry between Cincinnati and Newport, Kentucky, in disregard of the
rights of Taylor, who had an exclusive license from the authorities
of the State of Kentucky to ferry from the Kentucky to the Ohio
side of the river.
The power of Congress to require vessels to be enrolled and
licensed is derived from the provision of the Constitution which
authorizes it "to regulate commerce with foreign nations and among
the several states." We have already seen that this Court, in
Fanning v. Gregoire, ubi supra, has held that this right
of Congress "does not interfere with the police powers of a state
in granting ferry licenses."
These authorities show that the enrollment and licensing of a
vessel under the laws of the United States does not of itself
exclude the right of a state to exact a license from her own
citizens on account of their ownership and use of such property
having its situs within the state.
Counsel have argued other assignments, based on the construction
given by the Supreme Court of Illinois to the constitution
Page 107 U. S. 378
and laws of the state. As, in our opinion, all the federal
questions presented by the record were rightly decided by that
court, it is not our province to consider these assignments.
Murdock v. City of
Memphis, 20 Wall. 590.
We find no error in the record.
Judgment affirmed.
