# Cooley v. Port of Philadelphia

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Cooley v. Board of Wardens, 53 U.S. 299 (1852), was a case in which the United States Supreme Court held that a Pennsylvania law requiring all ships entering or leaving Philadelphia to hire a local pilot did not violate the Commerce Clause of the Constitution. Those who did not comply with the law had been required to pay a fee. "It is the opinion of a majority of the court that the mere grant to Congress of the power to regulate commerce, did not deprive the States of power to regulate pilots, and that although Congress had legislated on this subject, its legislation manifests an intention, with a single exception, not to regulate this subject, but to leave its regulation to the several states," wrote Justice Curtis for the majority. Warning: template has been deprecated.

## Dissenting Opinion

    McLean
United States Supreme Court
53 U.S. 299
Cooley v. Port of Philadelphia
THESE two cases were brought up from the Supreme Court of Pennsylvania, by writs of error, issued under the twenty-fifth section of the Judiciary Act.
They both depended upon the same principle, were argued and decided together, and will be treated as one. The only difference between them was, that the pilotage was demanded from two diffenent vessels, the Undine and the Consel. Cooley was the consignee of both vessels.
The twenty-ninth section of the act passed by the Legislature of Pennsylvania on the 2d of March, 1803, is set forth at length in the opinion of the court and need not be repeated.
The board of wardens brought an action of debt before Alderman Smith, against Cooley for half-pilotage, due by a vessel which sailed from Philadelphia without a pilot, when one might have been had. The magistrate gave judgment for the plaintiffs, and the defendant appealed to the Court of Common Pleas.
In that court, a declaration in debt was filed by the plaintiff below. In the case of the Undine, the defendant demurred, and upon the demurrer, judgment was given for the plaintiff.
In the case of the Consul, the defendant put in two pleas.
1. That the Consul was engaged in the coasting trade, sailing under a coasting license from the United States.
2. That the said schooner was bound from the port of Philadelphia, in the state of Pennsylvania, to the port of New York, in the state of New York.
To both of which pleas there was a demurrer and a joinder in demurrer, and a judgment for the plaintiff.
The case was then carried to the Supreme Court of Pennsylvania, which, in January, 1850, passed the following judgment:
That 'the judgment of the Court of Common Pleas for the city and county of Philadelphia be affirmed, because this court is of opinion that the twenty-ninth section of the act of the state of Pennsylvania, of the 29th of March, A. D. 1803, entitled An act to establish a Board of Wardens for the port of Philadelphia, and for the regulation of pilots and pilotages, and for other purposes therein mentioned, is not in any of its provisions involved in this cause, at variance with any of the provisions of the Constitution or laws of the United States, but is a constitutional and legal enactment.'
Cooley then brought the case up to this court.
It was argued by Mr. Morris and Mr. Tyson, for the plaintiff in error, and by Mr. Campbell and Mr. Dallas, for the defendants.
For the plaintiff in error, it was contended that the law of Pennsylvania was unconstitutional and void, because:
1. It is repugnant to the first and third clauses, eighth section, first article of the Constitution of the United States.
The first clause declares that all duties, imposts and excises, shall be uniform throughout the United States; and the third, that Congress shall have power to regulate commerce with foreign nations, and among the several States.
Upon the first clause we argue, that the constitutional uniformity enjoined in respect to duties and imposts, is as real and obligatory on the states in the absence of all legislation by Congress, as if the uniformity had been made by the legislation of Congress. The twenty-ninth section of the act of Pennsylvania, of 29th March, 1803, in question, and the second section of the act of June 11th, 1832, overthrow everything like uniformity.
No penalties, then, imposed by either of these acts can be binding.
Upon the third clause we argue, that the power to regulate commerce is exclusive in Congress.
2. It is repugnant to the second clause of the tenth section first article of the Constitution of the United States, to wit: 'No state shall, without the consent of Congress, lay any imposts, or duties, on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any state on imports and exports shall be for the use of the treasury of the United States.' And to the subsequent branch of the same clause, which declares, 'No state shall, without the consent of Congress, lay any duty on tonnage.'
The present case resembles Brown v. The State of Maryland, 12 Wheat., 419. There the tax was exacted for the privilege of selling. Here for the privilege of introducing or sending away.
The defendant in this case is the consignee, the merchant. This is, in reality, a tax upon imports. Judge Grier, Norris v. The City of Boston, 7 How., 458, 459. It is a tax upon those engaged in the business of importation, arising out of their position as importers.
It is a tax for a particular purpose, the support of a hospital for decayed pilots. If the state can appropriate the funds to this purpose, she can appropriate them to any other,-a general hospital for mariners, or an alms-house for indigent foreigners.
If the right be once admitted, and she choose, she can make the tax so high as to exclude commerce altogether. She can exclude all vessels not engaged in particular trades.
If this is a tax or duty, which we think is clearly shown, it is a tax or duty on tonnage, and, therefore, contrary to the second clause, tenth section, first article of the Constitution of the United States: 'No state shall, without the consent of Congress, lay any duty on tonnage.'
This is a duty on a tonnage of seventy-five tons or more, and increases with the increased draught of water. The same power might increase the duty or tax, varying it with the increased tonnage.
It may be said that Congress has consented, by the act of 7th August, 1789, section 4,--
'That all pilots in the bays, inlets, rivers, harbors, and ports of the United States, shall continue to be regulated in conformity with the existing laws of the state, respectively, wherein such pilots may be, or with such laws as the states may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress.' The act of Congress 2d March, 1837, 5 Stat. at L., 153, is a repeal of the part of the act of 1803 now in question.
But this act of Pennsylvania which we object to, is not an act to regulate pilots. It is an act to raise a fund for the support of decayed pilots.
We answer further: Congress may adopt state legislation when within constitutional limits, no doubt; yet it cannot be, that by general legislation of this kind, they can prospectively confer upon the states powers not given by the Constitution, or enable individual states to legislate on subjects clearly within the powers of Congress, and to support that legislation even against subsequent acts of Congress upon the same subject.
The Chief Justice, in speaking of this act in the license cases, 5 How., p. 580, says:
'Undoubtedly Congress had the power, by assenting to the state laws then in force, to make them its own, and thus make the previous regulations of the states the regulations of the General Government. But it is equally clear, that as to all future laws by the states, if the Constitution deprives them of the power of making any regulations on the subject, an act of Congress could not restore it; for it will hardly be contended that an act of Congress can alter the Constitution, and confer upon a state a power which the Constitution declares it shall not possess.'
All that has been said applies equally to the case of the Consul. In addition to which we set up by plea,--
1. The coasting license.
2. That she was bound from one port in the United States, to another port in the United States.
Let it be granted that the power to regulate commerce is not so exclusive as to prevent state legislation, in the absence of legislation by Congress.
Yet Congress having legislated, so far as regards coasting vessels, by the act of 18th Feb., 1793, § 4, the Pennsylvania act of 29th March, 1803, § 29, which is in conflict therewith, is unconstitutional and void, so far as it relates to coasting vessels. 4 Smith's L., 76; 1 Stat. at L., 305
To make out these propositions, we argue,
First, That pilot-laws are regulations of commerce, within the meaning of the Constitution of the United States.
Second, That the act of Pennsylvania is no exception to the general rule.
Third, That the act of Congress, 18th Feb., 1793, § 4, has regulated the navigation of coasting vessels, and limited the exactions to which vessels so employed can be subjected.
1. Regulations of navigation are regulations of commerce and within the jurisdiction of Congress.
'Commerce is intercourse. The power to regulate commerce extends to the regulation of navigation.' Per Chief Justice Marshall, Gibbons v. Ogden, 9 Wheat., 189; see Id., 191, 192, 193.
Again,-Mr. Justice Johnson, Id., 229, says, 'When speaking of the power of Congress over navigation, I do not regard it as a power incidental to that of regulating commerce; I consider it as the thing itself; inseparable from it, as vital motion is from vital existence.'
This power comprehends navigation within the limits of every State in the Union. Id., 107. Norris v. The City of Boston, and Smith v. Turner, 7 How., 414, 415, 462.
Pilotage laws are regulations of navigation. They prescribe the terms of commercial or maritime intercourse. They take possession of the vessel as she appears upon the coast, or as soon as she leaves the wharf.
Clearly stated by Chief Justice Taney, License Cases, 5 How., 580. By Judge Rodgers, Flanigan v. The Insurance Co., 7 Barr., 311.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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