the registered tonnage thereof," the tax to be assessed at the port where the vessels are registered, if practicable to be demanded of the person in charge of the vessel, and if not paid, the vessel to be seized and sold. Cox, a citizen of Alabama, the owner of a steamboat enrolled and licensed for the coasting trade, engaged in the navigation of the Alabama, Bigbee, and Mobile rivers, carrying freight and passengers between Mobile and points on these rivers, altogether within the limits of the State, paid the tax under protest and brought suit to recover it, on the ground that it was a tonnage tax, or duty of tonnage. The Supreme Court of Alabama thought this was a tax on the boats as property, and that their registered tonnage was referred to merely as a means of determining the amount of the tax to be imposed,1 distinguishing it from a case in South Carolina, where the vessels were engaged in a coasting trade, and from a case in Alabama, where the boats were used in transporting cargoes to and from vessels on Mobile bay engaged in foreign commerce. In the Supreme Court of the United States, this decision was reversed, the court holding the tax to be a duty of tonnage, and that the fact that the steamboat was not only owned by a citizen of the State, but exclusively engaged in trade between places within the State, did not change the character of the tax. It was said that the tax was laid on steamboats, wholly irrespective of their value as property, and exclusively on the basis of their cubical contents, and was therefore within the express terms of the prohibition.5 The oyster law of Virginia contained this provision: "Every captain or officer of a vessel which shall be employed in carrying oysters taken in the waters of Virginia, shall obtain from an inspector a license, for which he shall pay to said inspector a tax of three dollars per ton, for every ton said vessel may measure, according to the custom house enrollment or license." This was held to be a duty of tonnage, a tax upon the vessel, the vehicle of commerce. And where the tax is not measured by the tonnage of the vessel, but is a fixed sum upon the ship, as where the wardens of a port are authorized to demand and receive five dollars for every vessel arriving in port, whether called on to perform any service or not, it is within the 1 Lott v. Mobile Trade Co. 43 Ala, 578. 2 Alexander v. Wilmington & Raleigh R. R. 3 Strobh. 594. 3 Lott v. Morgan, 41 Ala. 246. 4 State Tonnage Tax Cases, 12 Wall. 204. 'Id. 217. See also Cannon v. New Orleans, 20 Wall. 577; s. c. 2 Cent. L. J. 66; N. W. U. Packet Co. v. St. Paul, 2 Cent. L. J. 437; s. c. Chicago L. N. July 3, 1875; Peete v. Morgan, 1 Cent. L. J. 413; s. c. 19 Wall. 581. Johnson v. Drummond, 20 Gratt. 419–422. prohibition. It is the tax or duty upon the ships as vehicles of commerce, which is prohibited. Said Mr. Justice Miller, in Cannon v. New Orleans (supra): "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." This tax on tonnage, or on the vessel, is as much a tax as a tax on imports or exports, or as a tax on the goods themselves which are carried in the vessels, and the reason which induced the framers of the Constitution to withdraw imports and exports from taxation, apply as strongly to the vessels engaged in carrying the goods.2 We have seen heretofore, in § 47, that vessels of all kinds, as property, were liable to taxation in the same manner as other personal property owned by citizens of the State. The prohibition only comes into play where they are not taxed in the same manner as other property of citizens of the State, but where the tax is imposed upon the vessel, the instrument of commerce, without reference to the valne of the vessel. There is an important exception to this rule, in the matter of pilot fees and half-pilot fees. When the Constitution of the United States was adopted, the different States had each laws of their own for the regulation of pilots and pilotage. Under the power to regulate commerce, Congress had power to control this subject, and it exercised the power by the act of 1789, which left the subject of pilots and pilotage to be regulated by the laws then in existence, and to be thereafter enacted by the respective States, until further legislation by Congress. With the exception of the act of 1837, allowing the master of a vessel, entering or departing from a port situate upon waters the boundary between two States, to take a licensed pilot from either State, no further legislation was had until 1852. The earliest case on this subject arose out of a statute of Pennsylvania, requiring vessels arriving or departing from the port of Philadelphia, to take a pilot, requiring the master on arrival or departure to make report to the wardens of the port, and inflicting a penalty of sixty dollars for neglect or refusal, and in case the vessel refused to take a 2 20 Gratt. 202, 423; 12 Wall. 215; Gibbons v. Ogden, 9 Wheat. 202. 31 Statutes, p. 54. 45 Statutes at Large, 153. pilot imposing a forfeiture of half-pilotage. It was held, that the mere grant to Congress of the power to regulate commerce, did not prevent the States from regulating pilots; that the action of Congress on the subject had been such as to leave the States free to make regulations without conflicting with the will of Congress, and that these regulations of Pennsylvania were not a duty of tonnage.1 The claim for half-pilotage is placed upon the ground that pilots are a meritorious class, engaged in a service full of hardships and often of peril; that in the performance of their duties they are shut out from the pursuit of any other occupation, and that they are necessary to give security to life and property exposed to the dangers of a difficult navigation. If the selection of a pilot were left to the choice of a master, or the exertions of a pilot to reach a vessel and tender his services were without remuneration, this class, absolutely necessary to commerce, could not be sustained. All commercial States, from the earliest period, have had similar laws. The Romans and the Danes had such laws, and the Hanseatic ordinance of 1457 required the captain to take a pilot under the penalty of a mark of gold. The maritime code of the Pays Bas, and maritime law of France, of 1618, imposed penalties on captains refusing to take pilots; the latter also imposed corporal punishment. Under the pilot laws of California, a licensed pilot offered his services to an American ocean steamer, registered at the custom house in the port of New York, and exclusively employed in navigating the ocean and carrying passengers and treasure between San Francisco and Panama. His services were refused, and he brought suit for the half-pilotage. It was claimed that not only did the statute of California violate the provision of the Constitution as a tonnage duty, but that the act of Congress of the 30th of August, 1852, "to amend an act entitled an act to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam," had established pilot regulations, and that Congress having exercised the power to regulate commerce through this law, all regulations by the States were inconsistent therewith, and void. The court held that it was not a duty of tonnage, and that the act of 1852 did not establish pilot regulations for ports, its object being to provide a system under which the masters and owners of vessels propelled in whole or in part by steam may be required to employ competent pilots to navigate such vessels on their 1 Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. 299. voyage.1 The fee required by the ordinance of a city to be paid to the harbor master, for assigning a vessel its place at its wharf or in the harbor is not a duty of tonnage. § 64. Regulation of Commerce.-The Constitution provides that "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." * There is, perhaps, no part of the Constitution as to which there has been more diversity of opinion among the first judicial minds of the country. No less a person than Chief Justice Taney, held in a luminous opinion, that the taxing power of the States was not to be abridged by the mere affirmative grants of power to the general government. He regarded the prohibitions as to tonnage and import duties the only express limitations on the taxing power of the States. The limitation by affirmative grant of power, he characterized as a new doctrine, in opposition to the contemporaneous construction and the authority of adjudged cases, and one that might be extended in a way seriously to impair the taxing power of the States. The majority of the court took a different view of the subject, and the doctrine is now firmly established that the taxing power of the States, while it may be exercised upon all property within their limits, upon the goods carried or the instruments of commerce, as property, and thus indirectly affect commerce, yet where the tax law amounts to a regulation of commerce, it is void, because in conflict with the power granted to Congress, which, when exercised, is exclusive and supreme. The earliest case on the subject arose out of a grant by the legislature of New York to Livingston and Fulton of the exclusive right to navigate the waters of the State in vessels propelled by steam. The case was twice before the courts of New York. The first time the court held that the internal commerce of the State, by land and water, remained exclusively under the control of the State, and that the power of the State to make such an exclusive grant as that under consideration was not divested, because Congress might make some future regulation of commerce inconsistent with the grant to Livingston and Fulton.5 The second time, the defendant claimed a right to navigate the waters of New York in opposition to the grant, on the 'Steamship v. Joliffe, 2 Wall. 450. Miller, Swayne and Clifford, JJ., dissented, holding that the act of 1852 was a regulation of pilots, and applied to pilots in ports as well as on a voyage. Ex parte McNeill, 13 Wall. 236, affirms previous cases as to the validity of half-pilotage. State v. City Council of Charleston, 4 Rich. (Law), 286. 3 Art. 1, § 8, par. 3. Livingston v. Van Ingen, 9 Johns. 507. 4 Passenger Cases, 7 How. 482. 4 ground that his boats were duly enrolled and licensed, at Perth Amboy, in New Jersey, to carry on the coasting trade. The court held that the act of Congress regulating the coasting trade was not a regulation of commerce between the States, and was not entitled to assert any supremacy over State regulations of internal commerce, and that the coasting license merely gave to a steamboat an American character for the purpose of revenue.1 This decision was reversed in the Supreme Court of the United States, the court, in a most elaborate opinion by Chief Justice Marshall, evolving from the constitutional provision the following propositions: That commerce is something more than traffic; it includes commercial intercourse between nations and parts of nations, in all its branches, and comprehends navigation; it includes all sorts of trade that can be carried on between this country and foreign nations, and between the States; that it does not include that which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States; but the trade and navigation to which it extends does not stop at the external boundary of the State; it extends to every district in the States reached by navigable waters; that the power is one to prescribe the rule by which commerce is to be governed, and this power, when exercised, is exclusive and supreme; that the license to carry on the coasting trade does not confer upon a vessel her character as an American vessel, but it does what it professes to do, gives permission to a vessel proved by her enrollment to be American, to carry on the coasting trade; that this coasting trade includes the carriage of passengers as well as freight; that the exclusive grant to Livingston and Fulton was in conflict with the right of Gibbons under his coasting license, and void. The boats in this case were ferry-boats engaged in carrying freight and passengers from Elizabethtown in New Jersey to the city of New York. The principles announced in this case have very generally been followed in all subsequent cases, of which there are several classes: those, where there is conflict between the police power of the State as exercised with reference to the bridges over navigable streams; those in reference to vessels to protect the people of the State from the introduction of disease and pauperism, or to protect the lives of persons traveling on steamboats; those where the 8 6 1 Ogden v. Gibbons, 17 Johns. 488. 'Gibbons v. Ogden, 9 Wheat. 1; City of New York v. Miln, 11 Peters, 134, 135. 'Id. 190. 6 Id. 197. 4 Id. 194. " Id. 195, 196. * Id. 218, 219. |