The provision in the Ordinance of l787 that the navigable waters
leading into the Mississippi and the St. Lawrence shall be common
highways, forever free, without tax, impost, or duty therefor,
refers to rivers in their natural state, and does not prevent the
State of Illinois from improving the navigation of such waters
within its limits or from charging and collecting reasonable tolls
from vessels using the artificial improvements as a compensation
for the use of those facilities.
Escanaba Co. v. Chicago, 107 U.
S. 678, restated and affirmed and applied to this
case.
A river does not change its legal character as a highway if
crossings by bridges or ferries are allowed under reasonable
conditions, or if dams are erected under like conditions.
Cardwell v. American Bridge Co., 113 U.
S. 205, and
Hamilton v. Vicksburg &c. Railroad,
ante, 119 U. S. 280,
affirmed.
If, in the opinion of a state, its commerce will be more
benefited by improving a navigable stream within its borders than
by leaving the same in its natural state, it may authorize the
improvements although increased inconvenience and expense may
thereby attend the business of individuals.
A "duty of tonnage," within the meaning of the Constitution, is
a charge upon a vessel according to its tonnage as an instrument of
commerce for entering or leaving a port, or navigating the public
waters of the country.
This was a bill in equity to prevent certain officers of the
State of Illinois from exacting tolls upon the vessels of the
complainants passing through the improved waters of the Illinois
River. Respondents demurred, and the bill was dismissed on the
demurrer. Complainants appealed. The case is stated in the opinion
of the Court.
Page 119 U. S. 544
MR. JUSTICE FIELD delivered the opinion of the Court.
This case comes from the Circuit Court for the Northern District
of Illinois. It was heard there and decided on demurrer to the bill
of complaint. The substance of the bill is this: that by various
acts of her legislature, commencing with one passed in February,
1867, the State of Illinois adopted measures for improving the
navigation of Illinois River, including the construction of a lock
and dam at Henry and at Copperas Creek on the river. She created a
board of canal commissioners, and invested it with authority to
superintend the construction of the locks and dams, to control and
manage them after their construction, and to prescribe reasonable
rates of toll for the passage of vessels through the locks. By a
clause in one of the acts it was provided that all tolls received
for the use of the locks, not necessary to keep the same in repair
and to pay the expenses of their collection, should be "paid
quarterly into the state treasury as part of the general revenue of
the state." Laws of Illinois of 1872, 213, 214. The works were
constructed at an expense of several hundred thousand dollars,
which was principally borne by the state. It is represented that a
small portion was contributed by the United States. Those at Henry
were completed in 1872; those at Copperas Creek in 1877, and the
commissioners prescribed rates of toll for the passage of vessels
through the locks, the rates being fixed per ton, according to the
tonnage measurement of the vessels and the amount of freight
carried.
The complainants, citizens of Illinois, composing the firm of
Huse, Loomis & Co., are engaged, and have been since their
organization, in 1864, in cutting ice at Peru and at other points
on the Illinois River, and in transporting it on that river, and
thence by the Mississippi and other navigable streams, to St.
Louis, Memphis, and other southern markets, and in connection
therewith are carrying on a general transportation business, using
constantly from three to six steamboats, and from thirty to sixty
barges, varying from 125 to 1,000 tons, all
Page 119 U. S. 545
licensed and registered under the act of Congress. They allege
in the bill that prior to the construction of the dam across the
Illinois River at Henry, they were able to navigate the river
without interruption except such as was incident to its ordinary
use in its natural state; that the dams at that place and at
Copperas Creek are impediments to the free navigation of the river;
that while an additional depth of water is created above them, no
practical advantage ensues to the complainants, for they encounter
below the dams the same stage of water they would have without
them; that the dams are so constructed as to wholly impede, except
at extreme high water, the navigation of the river by steamboats
and other vessels which were previously accustomed to navigate it,
unless they pass through the locks; that from the construction of
the lock and dam at Henry in 1872 to the spring of 1878, they have
paid, as duties or charges upon the tonnage measurement of their
steamboats and other vessels, about $3,000, and for tolls imposed
upon the cargoes of ice transported by them about $5,000; that upon
subsequent shipments similar charges have been exacted, as also for
the passage of their boats and barges through the lock at Copperas
Creek. And they allege that they are advised and believe that the
imposition of the tolls and tonnage duties mentioned is in
violation first of the provision of article four of the ordinance
for the government of the Territory of the United States northwest
of the Ohio River passed July 13, 1787, which provides that
"The navigable waters leading into the Mississippi and St.
Lawrence, and the carrying places between the same, shall be common
highways, and forever free as well to the inhabitants of the said
territory as to the citizens of the United States and those of any
other states that may be admitted into the Confederacy, without
any, tax, impost, or duty therefor,"
and second of the article of the Constitution of the United
States which prohibits the imposing of a tonnage duty by any state
without the consent of Congress. Article I, Section 10. They
therefore pray that the defendants, who are canal commissioners,
and all persons acting under them, may be restrained from exacting
any tonnage
Page 119 U. S. 546
duties or other charges for the passage of their steamboats or
barges and other vessels used by them in navigating the Illinois
River, or from interfering in any manner with the free and
uninterrupted navigation of the river by them in the usual course
of their business.
The questions thus urged upon the consideration of the court
below are pressed here, but they are neither new nor difficult of
solution. The opinion of that court presents in a clear and
satisfactory manner the full answer to them, and nothing can be
added to the force of its reasoning. In affirming its conclusions,
we can do little more than repeat its argument.
Huse v.
Glover, 15 F. 292.
The fourth section of the ordinance for the government of the
Northwestern territory was the subject of consideration in
Escanaba Co. v. Chicago, 107 U. S. 678. We
there said that the ordinance was passed before the Constitution
took effect; that although it appears by various acts of Congress
to have been afterwards treated as in force in the territory,
except as modified by them, and the act enabling the people of
Illinois Territory to form a constitution and state government, and
the resolution of Congress admitting the state into the union,
referred to the principles of the ordinance, according to which the
Constitution was to be formed, its provisions could not control the
powers and authority of the state after her admission; that
whatever the limitation of her powers as a government while in a
territorial condition, whether from the ordinance of 1787 or the
legislation of Congress, it ceased to have any operative force
except as voluntarily adopted by her after she became a state of
the union; that on her admission she at once became entitled to and
possessed of all the rights of dominion and sovereignty which
belonged to the original states; that the language of the
resolution admitting her was that she is "admitted into the union
on an equal footing with the original states in all respects
whatever;" and that she could therefore afterwards exercise the
same powers over rivers within her limits as Delaware exercised
over Blackbird Creek, and Pennsylvania over Schuylkill River.
Pollard v.
Hagan, 3 How. 212;
Permoli v.
New Orleans, 3 How. 589;
Strader v.
Graham, 10 How. 82.
Page 119 U. S. 547
We also held in that case that independently of these
considerations, the terms of the ordinance were not violated
because the navigable streams were subject to such crossings as the
public necessities and convenience might require. The rivers did
not change their character as common highways if the crossings were
allowed under reasonable conditions, and so as not unnecessarily to
obstruct them. The erection of bridges with dams, and the
establishment of ferries for the transit of persons and property,
are consistent with the free navigation of the rivers, and in
support of this doctrine we referred to the case of
Palmer v.
Cuyahoga County, 3 McLean 226, where Mr. Justice McLean,
speaking of the provision of the ordinance, said:
"This provision does not prevent a state from improving the
navigableness of these waters by removing obstructions, or by dams
and locks so increasing the depth of the water as to extend the
line of navigation; nor does the ordinance prohibit the
construction of any work on the river which the state may consider
important to commercial intercourse. A dam may be thrown over the
river, provided a lock is so constructed as to permit boats to pass
with little or no delay and without charge. A temporary delay, such
as passing a lock, could not be considered as an obstruction
prohibited by the ordinance."
Since the decision in the
Escanaba case, we have had
our attention repeatedly called to the terms of this clause in the
ordinance of 1787. A similar clause as to their navigable rivers is
found in the acts providing for the admission of California,
Wisconsin, and Louisiana. The clause in the act providing for the
admission of California was considered in
Cardwell v. American
Bridge Co., 113 U. S. 205. We
there held that it did not impair the power which the state could
have exercised over its rivers had the clause no existence, and
that its object was to preserve the rivers as highways equally open
to all persons, without preference to any and unobstructed by
duties or tolls, and thus prevent the use of the navigable streams
by private parties to the exclusion of the public, and the exaction
of toll for their navigation. The same doctrine we have reiterated
at the present term of the
Page 119 U. S. 548
Court in construing a similar clause in the act for the
admission of Louisiana.
Hamilton v. Vicksburg, Shreveport &
Pacific Railroad, ante, 119 U. S. 280. As
thus construed, the clause would prevent any exclusive use of the
navigable waters of the state -- a possible farming out of the
privilege of navigating them to particular individuals, classes, or
corporations or by vessels of a particular character. That the
apprehension of such a monopoly was not unfounded is evident from
the history of legislation since. The State of New York at one time
endeavored to confer upon Livingston and Fulton the exclusive right
to navigate the waters within its jurisdiction by vessels propelled
in whole or in part by steam.
The exaction of tolls for passage through the locks is as
compensation for the use of artificial facilities constructed, not
as an impost upon the navigation of the stream. The provision of
the clause that the navigable streams should be highways without
any tax, impost, or duty has reference to their navigation in their
natural state. It did not contemplate that such navigation might
not be improved by artificial means, by the removal of
obstructions, or by the making of dams for deepening the waters, or
by turning into the rivers waters from other streams to increase
their depth. For outlays caused by such works the state may exact
reasonable tolls. They are like charges for the use of wharves and
docks constructed to facilitate the landing of persons and freight
and the taking them on board, or for the repair of vessels.
The state is interested in the domestic as well as in the
interstate and foreign commerce conducted on the Illinois River,
and to increase its facilities and thus augment its growth it has
full power. It is only when, in the judgment of Congress, its
action is deemed to encroach upon the navigation of the river as a
means of interstate and foreign commerce that that body may
interfere and control or supersede it. If in the opinion of the
state greater benefit would result to her commerce by the
improvements made than by leaving the river in its natural state --
and on that point the state must necessarily determine for itself
-- it may authorize them, although increased inconvenience and
expense may
Page 119 U. S. 549
thereby result to the business of individuals. The private
inconvenience must yield to the public good. The opening of a new
highway, or the improvement of an old one, the building of a
railroad, and many other works in which the public is interested
may materially diminish business in certain quarters and increase
it in others; yet for the loss resulting the sufferers have no
legal ground of complaint. How the highways of a state, whether on
land or by water, shall be best improved for the public good is a
matter for state determination, subject always to the right of
Congress to interpose in the cases mentioned.
Spooner v.
McConnell, 1 McLean 337;
Kellogg v. Union Co., 12
Conn. 7;
Thames Bank v. Lovell, 18 Conn. 500;
McReynolds v. Smallhouse, 8 Bush 447.
By the terms "tax, impost, and duty," mentioned in the
ordinance, is meant a charge for the use of the government, not
compensation for improvements. The fact that if any surplus remains
from the tolls over what is used to keep the locks in repair and
for their collection, it is to be paid into the state Treasury as a
part of the revenue of the state does not change the character of
the toll or impost. In prescribing the rates, it would be
impossible to state in advance what the tolls would amount to in
the aggregate. That would depend upon the extent of business done
-- that is, the number of vessels and amount of freight which may
pass through the locks. Some disposition of the surplus is
necessary until its use shall be required, and it may as well be
placed in the state treasury, and probably better, than anywhere
else.
Nor is there anything in the objection that the rates of toll
are prescribed by the commissioners according to the tonnage of the
vessels and the amount of freight carried by them through the
locks. This is simply a mode of fixing the rate according to the
size of the vessel and the amount of property it carries, and in no
sense is a duty of tonnage within the prohibition of the
Constitution. A duty of tonnage within the meaning of the
Constitution is a charge upon a vessel, according to its tonnage,
as an instrument of commerce, for entering or leaving a port or
navigating the public waters of the
Page 119 U. S. 550
country, and the prohibition was designed to prevent the states
from imposing hindrances of this kind to commerce carried on by
vessels.
In
Packet Company v. Keokuk, 95 U. S.
80, that city was authorized by its charter to make
wharves on the banks of the navigable river upon which it is
situated, and to collect and regulate wharfage, the rates being
proportioned to the tonnage of the vessel, and the Court held that
the charge was not subject to the objection that it was a duty of
tonnage within the prohibition of the Constitution. It said:
"A charge for services rendered or for conveniences provided is
in no sense a tax or a duty. It is not a hindrance or impediment to
free navigation. The prohibition to the state against the
imposition of a duty of tonnage was designed to guard against local
hindrances to trade and carriage by vessels, not to relieve them
from liability to claims for assistance rendered and facilities
furnished for trade and commerce. It is a tax or a duty that is
prohibited -- something imposed by virtue of sovereignty not
claimed in right of proprietorship. Wharfage is of the latter
character. Providing a wharf to which vessels may make fast, or at
which they may conveniently load or unload, is rendering them a
service."
And in
Transportation Co. v. Parkersburg, 107 U.
S. 691, speaking of a charge of wharfage according to
the tonnage of a vessel, and a duty of tonnage prohibited by the
Constitution, the Court said:
"They are not the same thing. A duty of tonnage is a charge for
the privilege of entering or trading or lying in a port of harbor;
wharfage is a charge for the use of a wharf."
And, again:
"The fact that the rates [of wharfage] charged are graduated by
the size or tonnage of the vessel is of no consequence in this
connection. This does not make it a duty of tonnage in the sense of
the Constitution and the acts of Congress."
Cannon v. New
Orleans, 20 Wall. 577;
Packet Company v.
Catlettsburg, 105 U. S. 559.
It is unnecessary to pursue the subject further. We do not see
any objections that would justify a disturbance of the decree
below, which is accordingly
Affirmed.