#### Spencer S. Benedict *et al.*plaintiffs and respondents, *vs.*Cornelius Vanderbilt, defendant and appellant.

1. The statute of this state *(laws of*1850, *p.*81, *cll.*72,) providing for the appointment of harbor masters for the port of New York, to regulate the position of vessels there, and imposing upon every vessel entering the port and loading or unloading,-or making fast to wharves,’ fees to he paid to the harbor masters, in proportion to the tonnage of such vessels, is not in conflict with the provisions of the constitution of the United-States, which give'congress the power “to regulate commerce,” and forbid the several states “to lay duties on imports or exports, or any duty of tonnage.”

2. It is competent for a state to establish local port charges, for services rendered by its officers to vessels and cargoes within its ports, in carrying out lawful and necessary municipal and police regulations.

(Before Bosworth, Ch. J. and Robertson and Barbour, JJ.)

Heard December 20, 1862;

decided May 30, 1863.

This was an appeal from an order overruling a demurrer to the complaint.

The action was brought by the plaintiffs, Benedict, Paten, Hall, Fagan;-1-Barber, Marche, Stagg, Brennan, Schultz, Brainard and Kelsey *v.*the defendant (Vanderbilt.) The plaintiffs were the harbor masters of the port of Hew -York, and sued to recover double fees under the statute of this state *(Laws of*1850, 81, *ch.*72,) up.on the refusal of the defendant, who was *195the owner of several steamships, to pay the fees prescribed by that act, for using the harbor and wharves of the city of Kew York, as therein described:

The complaint sets forth, that the plaintiffs, from the 7th of May, 1857, to and including the 30th of June, 1857, were harbor masters of the port of Kew York, appointed under a law of that state, and as such entitled to demand and receive from the commanders, owners, and consignees, or any of them, on all ships or vessels of the United States, which shall enter the •port of Kew York and load, or unload, or make fast to any wharf therein, one cent and one half of one cent per ton, to be computed on the tonnage expressed in the register or enrolment of such ships or vessels; with fees to be equally divided among the plaintiffs. That by the law of the state it was made the duty of the master, owner, or consignee of súch ship or vessel to pay such fees within a certain time (forty-eight hours) after the arrival of such ship or vessel, at the office of such plaintiff, such harbor masters, or one of them, and in default of payment on demand, such master, owner, or consignee should forfeit and pay double the amount of such fees, to be sued for and recovered in the names and for the use of such harbor masters in any court having cognizance thereof.

That the defendant was, during the time before mentioned, the owner of a steamship or- vessel, called the Vanderbilt, a United States vessel, which was, by her registry, of the tonnage of 3360 tons. (The ownership and tonnage of other steamships, Korth Star and Ariel, were in like manner also stated.)

That about the 7th day of May, 1857, the steamship Vanderbilt, then belonging to the defendant, arrived at the port of Kew York from a foreign port, and made fast to a wharf therein, and loaded and unloaded thereat; whereby the plaintiffs became entitled to demand and receive, and the said defendant became bound to pay, within forty-eight hours after the arrival of such vessel, the sum of $50-40 for such fees.

Similar averments were made as to an other voyage of the Vanderbilt, and as to voyages of the other vessels named.

*196The plaintiffs further alleged in such complaint that long after the lapse of forty-eight hours after the several arrivals of such several steamships in the port of New York, the defendant failed to pay the said fees or any part thereof. A personal demand and refusal of them was then alleged, and judgment demanded for $296.54, being double the aggregate of the fees named.

To this complaint the defendant demurred, assigning as ground thereof, that it did not state facts sufficient to constitute a cause of action. The objections relied on were, 1st. That the words of the statute were so ambiguous and uncertain that they were unintelligible, and could receive no construction. 2d. That the law was unconstitutional, because it imposed tonnage duties. The demurrer was heard at special term, before Mr. Justice Hoetmaít, who sustained the complaint, and from his order thereon, entered July 1, 1859, the defendant took this appeal.

*Wm. M. Evarts,*for the defendant, appellant.

I. The duty imposed by the fourth section of the statute of New York is a tonnage duty. Its imposition is void therefore as repugnant to the constitution of the United States, prohibiting the imposition of tonnage duties by a state. *(Const. U. S. art.*1, *sec.*10, *subd. 2. Story on Const.*§§ 1013, 1016, 1018, *and cases cited in subsequent*sections.)

II. That the payment exacted is, in the strictest sense, a duty of tonnage, is apparent from the tenor of the act. That imposes' it upon vessels, not in remuneration of services requested or performed in respect of them, but upon their mere entry into the port, and coming up to the wharf, and apportions it according to the register tonnage of the vessel.

III. The smallness of the duty does not vary its character. Á duty of ten dollars per ton is, in principle, undistinguishable from the imposition complained of. If the small duty be valid, any larger one would be equally so.

IY. The application of the revenue raised by the duty to purposes connected with the regulation of the port and the *197vessels using the same, does not relieve the imposition from invalidity. The power to lay the duty is not dependent upon the application of its proceeds. If the imposition be valid when the duty is applied to compensate the harbor masters, it would be equally so if the duty were appropriated to the salary of the state officers, or the support of common schools.

V. The whole spirit and effect of this law of the state is at variance with the fundamental purposes of the federal constitution in the control of navigation and commerce, whether in respect of foreign nations, or in respect of uniformity among the states. The act in question in its third section, discriminates, in its burdens, between foreign and domestic vessels. *(Const. U. S. art.*1, § 8, *subd.*1, 3 ; § 9, *subd.*5.)

"VI. The imposition of the dutybeing void, the double or penal duty, imposed .for omission of voluntary payment, can not be enforced.

*Gilbert Dean,*for the plaintiffs, respondents.

I. The words of the statute are express and clear, and not uncertain or ambiguous. The words are, “one and one half of one cent per ton,” making it fixed and definite.

In the 5th edition of the Revised Statutes, page 422, it is misprinted as “one and one half of onecer cent, per ton.”

If, however, the law ■ was as there printed, the meaning would be obvious, and could only be the same that the express terms of the law provide.

II. There is nothing in the law repugnant to the constitution of the United States.

1. Harbormasters are necessary local officers,»vested with powers to regulate and station vessels entering the port of New York, using our wharves and piers, and having the protection and advantage of our local laws and authorities. The law simply fixes their, compensation and mode of payment, and in doing so, uses the words, “ per ton,” but in no sense within the meaning of the constitution of the United States imposes “ *duties of tonnage.” (Gibbons*v. *Ogden,*9 *Whea*
      *198
      *ton,*1. *Mayor of N. Y.*v. *Milne,*11 *Peters,*102. *Smith*v. *Turner,*7 *How. U. S. Rep.*283. *Norris*v. *City of Boston,*7 *How. U. S. Rep.*285. *Cooley*v. *Board of Wardens of Phila.*12 *How. U. S. Rep.*299. *Cases cited in 5th edition Kent’s Com. vol. 1, p.*490, *note as well as text of marginal page*439. *Howell*v. *State of Maryland,*3 *Gill,*14. *Cisco*v. *Roberts,*6 *Bosw.*495.)

2. The state has the right to tax any property or person within, its jurisdiction, having the benefit of its protection, to meet the expenses of such protection. Having the power to tax, it has the right to determine the extent of the taxation, and the character of the property to be taxed. In this case, the complaint alleges that the ships named in the complaint were in the port, at the wharves, and discharged cargo at and used the same.

3. The imposition of the payment has nothing to do with the question of commerce. The state finds property within its jurisdiction, the owner of which is á citizen and a resident of this state. The property belongs here, and is taxed to support the expenses of the state, not because it is a ship or vessel, but because a ship or vessel is property, and liable to taxation. Any other doctrine would render unconstitutional almost every law which imposes a tax to meet the expenses of administering the state government. The law. wisely makes this kind of property pay the expenses of. its care while within its jurisdiction. With equal force could the objection be applied to wharfage laws, which are always fixed by the tonnage of the vessel.

III. Great .stress is laid by the defendant upon the fact that any vessel entering the port and making fast to the wharves thereof, is obliged to pay the fees, whether any service is performed by the harbor master or not, for that particular vessel. The answer is obvious. He is always performing service, and is always upon duty, and each vessel has the benefit of the service thus rendered. The same rule of reasoning would hold good in regard to any property taxed, unless it received the actual physical action of some state officer, This is asking too much.

*199IV. There is nothing in the spirit of the law antagonistic to the constitution of the United States. The law does not control commerce, or navigation, but simply makes property within the state liable to pay for its protection while so within it. All pilot laws would be equally offensive, and the imposing of' a fine for lying with jib-boom rigged out would be equally objectionable.

V. The states, before the adoption of the constitution of the United States, had the right to impose taxes. That right has never been surrendered, and they still possess it. Possessing the power to tax, its exercise can not conflict with the constitution of the United States, much less any discrimination in exercise.

VI. The state having the right to direct the payment of the fee within a limited time, have a right to impose a penalty for a non-compliance.

Bosworth, Ch. J.

Chapter 72, of the Laws of 1850, *(Laws of*1850, *p.*81,) provides for the appointment of eleven harbor masters, (§ 1;) specifies the security they are to give for the-faithful performance of their duties, *(Id.*§ 2,) and defines their powers. *(Id.*§ 3.)

Section *four,*(under which this suit is brought,) regulates these fees ; and section *five*declares when such fees shall be payable, and by. whom they shall be paid, and the consequences of non-payment.

Section *six,*in addition to the powers enumerated in section three, grants to the harbor masters certain powers as health officers.

Section *three*confers on the harbor masters “ authority to regulate andsstation all ships and vessels in the stream of the East or North River, within the limits of the city of New York, and the wharves thereof;” to remove those not employed in receiving or discharging cargoes, to make room for others requiring immediate accommodation; and to determine how far, and in what instances, it is the duty of the masters and *200others having charge of the ships and vessels, to accommodate each other, in their respective situations.

It is not objected that the powers conferred by this section may not lawfully be conferred by state authority, on harbor masters whom it appoints to exercise them ; nor that the compensation which the statute prescribes for the services, is unreasonable, or disproportioned to their value.

The vessels liable to pay the prescribed compensation, are those “which shall enter the said port of New York, *and*load or unload, *or*make fast to any wharf therein.” *(Id.*§ 4.)

The powers granted by section *three*do not aim to regulate trade and commerce between the port of New York and foreign ports, or in any matter affect it. The statute designed that the exercise of them should effectuate lawful and necessary municipal and police regulations. And that section does not conflict with any act of congress upon the right attempted to be drawn in question, by the defense to this action.

The fees or compensation prescribed by sectioú four, are, in their nature and intent, local port-charges for services rendered to vessels and cargoes in port.

It is no part of the design of the law to levy a tonnage duty, or an impost on imports or exports, under the name of fees or compensation, to be paid to the harbor masters.

The case of *Cooley*v. *Board of Wardens of Port of Philadelphia et al.*(12 *How. U. S. Rep.*399, 214,) and the opinion of the court are ■ quite pertinent to the present case, and support the plaintiff’s right to recover.

In my opinion the order appealed from should be affirmed, with costs.

Robertson, J.

A statute of this state provides that every vessel entering the port of New York, which “ *loads or unloads, or malees fast to any wharf therein,”*shall, within a specified time thereafter, pay , certain fees to the officers denominated harbor masters ; which fees are graduated by the tonnage of ■ such vessel, *(Sess. L.*1850, *ch.*72, *p.*81, § 4, 2 A. *S. 5th ed.*422.) In default of such payment, a penalty of double the *201amount is imposed upon the owner, master or consignee of the vessel, who refuses to make'it. (§ 5.)

The constitution of the United States gives congress power *to collect duties ;*but they are to be uniform throughout the United States, *(art.*1, § 8, *first clause ;)*and *to regulate commerce*with foreign nations, and among the several states, *(Id. clause*3;) while it prohibits states, without the consent of congress, from laying *“*any imposts, or 'duties on exports or imports, except what may. be 'absolutely necessary for executing its inspection laws,” or *“ any duty of*tonnage.” *(Art.*1, § 10, *clause*2.) It is claimed that the statute of this state, before referred to, violates all such provisions. •

The power of congress, to collect duties, and regulate commerce, was held in *Cooly*v. *The Port Wardens of Philadelphia,*(12 *How. U. S. Rep.*299,) not to interfere with any right of the states to levy duties or regulate navigation as a part of commerce for *local purposes, if hnoion and practiced at the time of the' adoption of the federal constitution*as distinct from levying duties for general purposes of revenue. *(Per*Curtis, J. *p.*312 *et seq.)*It was also there held, that the enforcement of the payment of sums of money, by way of penalty, to promote an established general policy employed to accomplish, such local purposes, was not an evasion of the restrictions on the state as to imposts or duties, or on tonnage; and even that any indirectness of appropriation of such penalties, by a trust, for the benefit of the officers appointed to carry into effect the local purpose, did not convert such penalties into revenue duties, within the meaning of the constitution. *(Id.).*In other words, that the statute then under consideration was not *“*a covert attempt ‘ to legislate ” *for revenue,*under pretence of legislating to enforce a system of pilotage.

In that case a penalty of half pilotage was. imposed by a statute of the state of Pennsylvania, upon persons refusing to take a pilot, and it was held to be a valid mode of carrying out the system of supporting a pilot service, known in all countries, and practiced at the time of the adoption of the constitution, and better regulated in each port according to the laws of the *202state in which it was situated, than by any general or uniform law, which must necssarily do practical injustice. The duties to be levied by the general government for the general purposes for which it was created, are required to be uniform in all the states ; while the labor and danger of pilots, according to which they should be remunerated, would necessarily vary in every port.

The question, then, in this case is : Whether the payment of the fees in question,- or the penalty for not paying them, tends to support a system of local advantages and regulations, better conducted by the local legislature of the state, known at the time of the adoption of the constitution, as distinct from á revenue raised by means of duties, to support a national government, when that government can make no distinction between states or ports, as to any duties to be raised to defray the expenses of their local use. This Can best be determined by ascertaining the accompanying acts required to be performed to deserve the fees in question.

By the first section of the state act in question, eleven harbor masters are authorized to be appointed, five previously masters of vessels sailing from this port, pilots engaged in piloting vessels therein, or seamen engaged in navigating the waters of New York harbor, They are to have authority to regulate and station all the vessels within' the limits of the city, remove unemployed vessels to render room for those employed, and determine the obligations of masters of vessels to accommodate each *other;*in all which matters they are to act *quasi*judicially. (§ 3.) These are certainly duties necessary to be discharged in all commercial ports in the world, and were undoubtedly so at the time of the adoption of the constitution, and duties or fees, whether measured by the tonnage of the vessel or not, when raised by different states to compensate such officers commensurate with the trouble in different ports, were not such duties as were to be raised by the federal government uniformly in all parts of the United States for general purposes. Judge Ourtis, in the case already cited, expressly names charges for wharfage, towage, “or any other local port *203charges, for services rendered to vessels or cargoes,” as distinct from duties on tonnage, and Judge Daniel, in the same case, holds that the powers delegated to congress in the constitution do “ not extend to the means of precaution or safety adopted within the .waters or limits of a state for safety of vessels or cargoes j” that such means are “essentially locab-^-depend upon local necessity—can not he uniform-^-have no connection with traffic, and belong to the same conservative powers as” those which “direct a vessel’s mooring or position in port, for safety of life and property, in reference to herself or other vessels’ cargoes or crews.” That such “power has been exercised by every state since the dawn of its existence,”, dan be “practically and beneficially applied by local authorities only, is not expressly delegated to congress, and does not necessarily conflict with the right to establish commercial regulations,” and is an original and inherent power.

It is possible that if such statutory provisions should conflict hereafter with any regulation of commerce by congress; they would be compelled to yield ; at present there are no such regulations, and therefore they are not void as interfering with the exercise of that power. *(Cooley*v. *Port Wardens of Phila. ubi sup.)*

The harbor masters’ fees are exacted *not*for entering or anchoring in the harbor, but using' the territory of the state “ *by loadiny or unloading or making fast to wharves.”*As touch service may he rendered by them in toalring or keeping room for the vessels arriving at the wharves where they unload, as if they had done some positive act in placing them there. A general regulation of the position of vessels in the harbor is a service to all who avail themselves of the wharves. It prevents collisions, disputes, and embarrassments of various kinds, and not only guards their safety, but facilitates the delivery of their cargo. It would be almost impossible to decide in many cases whether the exercise of the privilege of loading or unloading at a- particular wharf had or had not been the result of the action of the harbor masters ; and it was a fair exercise of legislative discretion to determine that *204the mere fact of loading or unloading or fastening to a particular wharf, was the result of the exercise by the harbor masters of their functions in the particular case and giving them the corresponding compensation. A penalty for not complying with provisions for keeping up a pilot system, partieulary when only appropriated to a charitable fund for pilots and their families, is much farther from a compensation for pilot service, than is the payment of fees to a harbor master for the privilege of loading or unloading at or making fast to a wharf, from compensation for regulating the position of vessels generally in a harbor.

I think the order or judgment appealed from should be affirmed, with costs.

Barbour, J. concurred in the conclusion.

Order affirmed.