Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1849-05-01
U. states Supreme Court.
THE PASSENGER TAX.


THE PASSENGER TAX.
OPINION OF CHIEF JUSTICE TANEY,
In oppositon to that of the majority OF the Su-
nreme Bench of the United States, on the
cons,i,utioualty of the laws OF Massachusetts
and New York, imposing tax on passengers
from foreign countries.
FURNISHED for publication in the Albany Argus
Chief Justice fancy delivered his opinion as
follows
do not concur in the judgment OF the Court
in these two cases, and proceed 10 state Tue
grounds on which dissent
The constitutionaliiy of the laws oil Massa'
chusel,s and New York, IN some respects, ue
mend upon the same principles. There are,
however, different questions IN the two cases,
and shall make myself better understood oy
examining separately one of the cases, and then
no;n,ius out how far the same reasoning applies
10 the other, and in what respect there IS dill
ference between them. And hrst as 10 Inc case
from Massachusetts.
This law meets The vessel alter she mas al
rived IN The haIbor and within the territorial
limits OF The Stale, but before The passengers nave
landed. and while they are still adoat upon navl-
gable waters. 1t requires The Stale othceT 10 90
on board and examine into The condition OF Inc
passengers; and provides that II any lunalic, do',
manned, aged or infirm persons, incompetent, 10
the opinion of The examining othcer, 10 MANI
tain themselves, or who nave oeen paupefs ~
anv oiher country, shall be found on board such
alien passenger shall not De permt'ea 10 lanu
mill the master owner, cons Ignee or agent oil The
vessel shall give bond, with sufficient security
thai no such lunatc or INDECENT person shall be-
come civ, town or Stale charge within zen
wears from The date OF the bond. These provIs.
ions are contained in the two first sections u IS
the third section that has given rise 10 ms contru
yelsy, ana which enacis lhal no alien passenger,
.her than those before spoken OF, shall be per-
M =, land until the master, owner, consisnee
ottieei lhe SUE vessel sSsnaa;s pf each passenger
so analu-, The mos ago as collected 10 be appro-
pfiated 10 The --npoIt Of foreign paupers
Inns law IS l-rt OF the pauper laws oil The
Slale, and the provision. in question is intended 10
create fund Tor the supRI, OF alien paupers,
and 10 prevent lis own citizens from being bur-
theued with their support.
| 40 no, ieem it material a l., time 10 inquire
whether the sum demanded is Lax or no; OF tina;
question | shall speak hereafter. The chArac.
Ter oil the transaction and the meaning OF the la "
canno! BE- misunderstood. II The alien chooses 10
remain on board and 10 depan with the ship or
in any other vessel the captain is not required 10
pay the money. lis paymen is The condition up
on which the Slate permits The alien passenger 10
come on shore and ningle with is citizens and
10 reside among them. lie obtains this privilege
from The Siaie By the payment Of The money. IL
is demanded from the captain and not from eve.
ry separate passenger, for the convenience OF COL
lection But the burhen evidently falls on the
passenger, and he, in fact, pays j, either in The
enhanced price OF his passage or directly 10 nc
apta bpfp iS embark
voyage. The nature OF the transaction and the
ordinary course OF business shows that this must
be The case And the present claim, therefore,
comes before the court without any equitable
considerations TO recommend il, and does u call
upon US TO restore money 10 party from whom
il has been wronsluy exactcd. II me plaintiff
RECEIVERS, ne will MIST probably obtain from the
Stale the money which he has, doubtless, already
received ron The passenger for the purpose Of
being paid TO the Safe, and which, il the Stale IS
not entitled TO it, ought 10 be refunded 10 the pas
senser. The writ of error, however brings up
nothing tor revision here but The conslituionali-
~ OF the law under which this money was de-
mauded and paid, and that question proceed 10
examine.
And the first inquiry is whether, under the con-
sitution OF the United States The federal govern.
mcnl has the power 10 compel the several States
10 receive and suffer TO remain in association
with its citizens every person or class OF persons
whom il may be The policy or pleasure OF Inc
United States TO admit In my judgment this
question lies at the foundation OF The controversy
in this case. | do not mean 10 say that The gen.
eral government have by treaty or ACT OF Con-
gress, required The Stale OF Massachusetts 10 per-
nit the aliens in question 10 land. think there IS
no treaty or act oil congress winch Can luSliy De
so construed.
But il is not necessary 10 examine that ques.
ton until we have first inquired whether Con-
gress can lawfully exercise such power, and
whether the States are bound 10 submit 10 it
For il The people OF the several States OF this
Union reserved to themselves the power OF ex-
pellng from their borders any person or class Of
persons whom il might deem dangerous 10 its
peace, or likely 10 produce physical or moral
evil among its citizens, then any treaty or law
Of Congress invading this right aud authorizing
the introduction OF any person or description o.
persons, against the consent Of The State, would
be an usurpation OF power which this court
could neither recognize nor enforce
had supposed this question not now open 10
dispute. Ii was dis inclly decided in Holmes VS..
Jennson, IA Pet, $40; in Groves vs. Slaughter,
Is Pel 449, and in Prigg vs.. The Common
wealth Of Pennsylvania. 10 Pet, 539.
II these cases are to sland the right OF The State
is undoubec. And ii is equally clear that il II
may remove from among lis citizens any person
or description Of persons, which il regards as IN.
furious 10 their welfare, il follows that II may
meet hem al the threshold and prevent Them from
entering. For il will hardly be said that The Uni
led States may permit Them 10 enter, and compel
the States TO receive hem, and that the States
may Immediately afterwards expel them. There
could be no reason OF policy or humanity Tor
compelling The States BY the power OF Congress,
TO imbibe the poison and then leaving them TO
find remedy Tor it by their own exerlions and
al their own expense.
Certainly no such distinction can Be found in
the constitution, and such division OF power
would be an inconsislency-nol 10 say an absur-
dity-iur which1 presume no one will contend.
II the Sale has The power 10 determine whether
the persons objected 10 shall remain in The Stale
in association with its citizens il must, as an in
cident inseparsbly connected with il, have the
right also 10 determine who shall enter. Indeed,
in the case Of Groves VS.. Slaughter, the Missls
sippi constitution prohibited the entry OF the OBJ.
ieclionable persons, and the opinions OF the court
throughout treat the exercise of this power as be-
iug the same with lha, Of e1pelling them after
they have entered
Neither can this be a concurrent power; and
whether it belongs to the general or 10 the State
government, The sovereignty which possesses
the RICH, must in its exercise, DO altogether indie
pendent Of The other, Ii the United States have
the power, then any legislation by the State in
conflict with treaty or act OF Congress would
be void. And if the States possess il, then any
act on the subject by the general government in