1. Article I, § 10, Clause 3, of the Constitution, providing
that no State shall, without the consent of Congress, lay any duty
of tonnage,
Page 296 U. S. 262
embraces taxes and duties which operate to impose a charge for
the privilege of entering, trading in, or lying in a port. P.
296 U. S.
264.
2. Invalidity under this clause depends upon the basis of the
exaction, not upon measure by tonnage. P.
296 U. S.
266.
3. This clause does not prevent a reasonable charge to defray
the expense of policing service rendered by the State to insure
safety and facility of movement of vessels using its harbors. P.
296 U. S.
266.
4. State harbor regulation, and charges to defray the cost,
though they may incidentally affect foreign or interstate commerce,
are not forbidden by the commerce clause so long as they do not
impede the free flow of commerce or conflict with any regulation of
Congress. P.
296 U. S.
267.
229 Ala. 624, 159 So. 53, affirmed.
Appeal from a judgment affirming a recovery of harbor fees, in
an action by the Docks Commission against the Steamship
Company.
MR. JUSTICE STONE delivered the opinion of the Court.
This case is here on appeal under § 237(a) of the Judicial Code,
28 U.S.C. § 344(a), from a judgment of the Supreme Court of
Alabama, 229 Ala. 624, 159 So. 53, which affirmed a money judgment
of the Circuit Court of Mobile County for the recovery of "harbor
fees" from appellant.
Appellee, the State Docks Commission, is a state agency
authorized to conduct "the operation of all harbors and seaports
within the State" and to "adopt rules not inconsistent with the
provisions of this Act for the purpose of regulating, controlling
and conducting the said operation" and with power
"to fix from time to time reasonable rates of charges for all
services and for the use of all improvements and facilities
provided under the authority
Page 296 U. S. 263
of this Act."
No. 303, Alabama Gen. Acts of 1923, p. 330; No. 1, Ala.Gen. Acts
of 1927, pp. 1, 8, 12, 13.
By resolution of March 5, 1924, appellee adopted rules and
regulations for the Port of Mobile, for the control, under the
direction of a "chief wharfinger" or harbor master, of the
movement, disposition, and anchorage of vessels passing in and out
of and using the port. By resolution of February 11, 1928, these
rules were readopted, and a new rule was added prohibiting the
discharge of fuel oil into the harbor by vessels and manufacturing
plants. The rules also established a schedule of "harbor fees," for
mooring and shifting vessels in the harbor, and for all vessels of
specified classes entering the harbor, including a fee of $7,50 for
vessels "500 tons and over." Appellants operate vessels of more
than 500 tons in the coastwise trade between New York and Mobile,
and the present suit was brought by appellee to recover fees
incurred by reason of the call of appellant's vessels at
Mobile.
The authority of appellee, under the laws and Constitution of
the state, to adopt the harbor rules and schedule of fees is not
questioned, and the reasonableness of the $7.50 fee is conceded.
But appellant insists that its imposition is prohibited by Art. I,
§ 10, Clause 3, of the Constitution, which provides that "no State
shall, without the Consent of Congress, lay any Duty of Tonnage,"
and that it is a burden on interstate commerce forbidden by the
commerce clause.
The Supreme Court of Alabama found that the contested fee was a
charge made for the policing of the harbor under the rules adopted
by the appellee to insure the safety of vessels and the dispatch of
shipping within the port, by regulating the speed of vessels, their
movement and anchorage, and by providing for their protection from
danger of fire occasioned by the uncontrolled discharge of oil into
the harbor.
Page 296 U. S. 264
The record amply supports this conclusion. Appellee's resolution
adopting the harbor fees declared that they were
"for the purpose of meeting the expense attendant upon the
supervision of the port and the execution of the regulations and
providing for the proper accommodation of vessels at this
port."
The rules are plainly devised to insure the safety of vessels
and to facilitate their use of the harbor. They regulate, within
the harbor, the disposition of the rigging of sailing ships, the
speed and mooring of vessels, the selection and change of their
anchorage, their loading and unloading, and the use of lighters,
barges, and rafts. They require the arrival of all vessels at the
port to be reported to the chief wharfinger, and charge him
with
"responsibility for selecting and changing anchorages of and for
the movements of vessels into and out of slips or berths, and with
all other ship movements that effect a fair joint use of the
facilities of the port."
The evidence shows that ship movements within the port are
carried on under his active supervision and control.
The $7.50 fee is conceded not to be a charge for the use of the
state docks or for mooring and shifting vessels, for which specific
charges are levied. It is the only fee attributable to the general
service rendered by the commission in securing the benefits and
protection of the rules to shipping in the harbor. We accept the
conclusion of the state court that it is charged for a policing
service rendered by the state in the aid of the safe and efficient
use of its port, and we address ourselves to the question whether
such a fee is forbidden by the Constitution either because it is a
"duty of tonnage" or an unwarranted burden on interstate
commerce.
1. It seems clear that the prohibition against the imposition of
any duty of tonnage was due to the desire of the framers to
supplement Art. I, § 10, Clause 2, denying to the states power to
lay duties on imports or exports,
Page 296 U. S. 265
See Southern Steamship Co. v.
Portwardens, 6 Wall. 31,
73
U. S. 35;
Keokuk Northern Line Packet Co. v.
Keokuk, 95 U. S. 80,
95 U. S. 87-88,
by forbidding a corresponding tax on the privilege of access by
vessels to the ports of a state, and to their doubts whether the
commerce clause would accomplish that purpose.
* If the states
had been left free to tax the privilege of access by vessels to
their harbors, the prohibition against duties on imports and
exports could have been nullified by taxing the vessels
transporting the merchandise. At the time of the adoption of the
Constitution, "tonnage" was a well understood commercial term
signifying in America the internal cubic capacity of a vessel.
See Inman Steamship Co. v. Tinker, 94 U. S.
238,
94 U. S. 243.
And duties of tonnage and duties on imports were known to commerce
as levies upon the privilege of access by vessels or goods to the
ports or to the territorial limits of a state and were distinct
from fees or charges by authority of a state for services
facilitating commerce, such as pilotage, towage, charges for
loading and unloading cargoes, wharfage, storage, and the like.
See Cooley v. Board of
Wardens, 12 How. 299,
53 U. S. 314;
Inman Steamship Co. v. Tinker, supra, 94 U. S.
243.
Hence, the prohibition against tonnage duties has been deemed to
embrace all taxes and duties, regardless of their name or form, and
even though not measured by the tonnage of the vessel, which
operate to impose a charge for the
Page 296 U. S. 266
privilege of entering, trading in, or lying in a port.
Southern Steamship Co. v. Portwardens, supra; 79 U.
S. 12 Wall. 204;
Cannon v.
New Orleans, 20 Wall. 577;
Inman Steamship Co.
v. Tinker, supra. And see Huse v. Glover,
119 U. S. 543,
119 U. S.
549-550. But it does not extend to charges made by state
authority, even though graduated according to tonnage, for services
rendered to and enjoyed by the vessel, such as pilotage,
Cooley
v. Board of Wardens, supra, or wharfage,
Keokuk Northern
Line Packet Co. v. Keokuk, supra; Northwestern Union Packet Co. v.
St. Louis, 100 U. S. 423;
Packet Co. v. Catlettsburg, 105 U.
S. 559;
Transportation Co. v. Parkersburg,
107 U. S. 691;
Ouachita River Packet Co. v. Aiken, 121 U.
S. 444, or charges for the use of locks on a navigable
river,
Huse v. Glover, supra, or fees for medical
inspection,
Morgan's Steamship Co. v. Board of Health,
118 U. S. 455.
Appellant places its reliance on those cases in which a tax,
levied in the guise of wharfage or a charge for medical inspection,
was condemned because imposed on all vessels entering a port,
whether receiving the benefit of the service or not.
See
Southern Steamship Co. v. Portwardens, supra; Cannon v. New
Orleans, supra; 86 U. S.
Morgan, 19 Wall. 581. It argues that the present fees must
similarly be condemned because imposed on all vessels entering the
port, and points out that appellant has neither asked nor received
any police service such as that which the state court regarded as
the basis for the charge.
But the policing of a harbor so as to insure the safety and
facility of movement of vessels using it differs from wharfage or
other services which benefit only the particular vessels using
them. It is not any the less a service beneficial to appellant
because its vessels have not been given any special assistance. The
benefits which flow from the enforcement of regulations, such as
the present, to protect and facilitate traffic in a busy harbor
inure to all who enter it. Upon this ground, among others, a
Page 296 U. S. 267
fee for half pilotage imposed upon vessels such as were not
required to take a pilot was upheld in
Cooley v. Board of
Wardens, supra, 53 U. S.
312-313. We conclude that a reasonable charge for a
service such as the present is neither within the historic meaning
of the phrase "duty of tonnage" nor the purpose of the
constitutional prohibition.
It is unnecessary to consider other types of port charges, as
for dredging or other forms of harbor improvement, with respect to
which different considerations may apply.
2. The present fee to defray the cost of a purely local
regulation of harbor traffic is not an objectionable burden on
commerce. State regulations of harbor traffic, although they
incidentally affect commerce, interstate or foreign, are of local
concern. So long as they do not impede the free flow of commerce
and are not made the subject of regulation by Congress, they are
not forbidden.
Willson v. Black Bird Creek
Marsh Co., 2 Pet. 245;
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 209;
Cooley v. Board of Wardens, supra, 53 U. S. 314;
Gilman v.
Philadelphia, 3 Wall. 713;
Pound v. Turck,
95 U. S. 459;
Escanaba & L.M. Transportation Co. v. Chicago,
107 U. S. 678;
Cardwell v. American River Bridge Co., 113 U.
S. 205;
Willamette Iron Bridge Co. v. Hatch,
125 U. S. 1;
Lake Shore & M.S. Ry. Co. v. Ohio, 165 U.
S. 365;
Cummings v. Chicago, 188 U.
S. 410;
Manigault v. Springs, 199 U.
S. 473;
see Brown v. Houston, 114 U.
S. 622,
114 U. S. 631;
Minnesota Rate Cases, 230 U. S. 352, 363
[argument of counsel -- omitted],
230 U. S. 407.
And charges levied by state authority to defray the cost of
regulation or of facilities afforded in aid of interstate or
foreign commerce have consistently been held to be permissible.
Such charges were considered and upheld in
Packet Co. v.
Keokuk, supra; Morgan's Steamship Co. v. Board of Health, supra;
Transportation Co. v. Parkersburg, supra, 107 U. S. 701,
et seq.; Ouachita Packet Co. v. Aiken, supra, 121 U. S. 448
et seq.; Huse v. Glover, supra. See Sands v. Manistee
River Improvement Co., 123 U. S. 288. A
similar exercise of state power is the imposition of inspection
Page 296 U. S. 268
or license fees incident to or in support of local regulations
of interstate commerce.
Patapsco Guano Co. v. Board of
Agriculture, 171 U. S. 345;
McLean & Co. v. Denver & Rio Grande R. Co.,
203 U. S. 38,
203 U. S. 54;
Red "C" Oil Mfg. Co. v. Board of Agriculture, 222 U.
S. 380;
Savage v. Jones, 225 U.
S. 501;
Merchants' Exchange v. Missouri,
248 U. S. 365;
Pure Oil Co. v. Minnesota, 248 U.
S. 158. Its most recent manifestation is the levy of a
tax which represents a reasonable charge upon interstate automobile
traffic passing over state highways, upheld in
Kane v. New
Jersey, 242 U. S. 160;
Clark v. Poor, 274 U. S. 554;
Interstate Busses Corp. v. Blodgett, 276 U.
S. 245;
Hendrick v. Maryland, 235 U.
S. 610.
Affirmed.
* The adoption of the duty of tonnage clause followed a motion
of Maryland delegates that "[n]o state shall be restricted from
laying duties of tonnage for the purpose of clearing harbors and
erecting light houses." Despite the assertion that such works were
peculiarly necessary in the Chesapeake, the convention proved
hostile to state tonnage levies. There was uncertainty whether the
commerce clause would forbid such duties: Gouverneur Morris said
that it would not, Madison thought that it should, Sherman argued
for a concurrent power over commerce with power in the United
States to control state regulations. Whereupon the clause was added
in its present form.
See Madison's Notes of the Convention
(for Sept. 15, 1787).