The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-03-29

In the passenger cases reported IN Howard, 2s3,
the branch OF the statute not passed upon IN the pre-
ceding case under consideration IN this court IL
was not the same statute but law relating TO the
Marine Hospital on Staten Island IL authorized the
Health Commissioner demand and Il not paid TO sue
Tor and recover, from the master OF every vessel
arriving In the port Of New YORK from foreign port
81 % Tor each cabin passenger and 81 for each STEER
age passenger mate sailor or mariner, ana rom me
master OF each cOastng vessel twenty-five cents Tor
each person on board These moneys to be appro
prlated to the use of the hospital
The defendant, Smith. who sued for the sum OF
Szo or refusing TO pay for 2s5 steeage passengers on
board the British snip Henry Bliss OF which he
was master, demurred to the declaration on
the ground that the contrary to
the constitution of the United states and void.
From judgment against him. affirmed IN the Court OF
Errors OF the State Of New York he sued writ Of
error, on which the question was brought to this
Court
1t was here held, at the January term, 1s49 that
the statute was "repugnant to the constitution aud
laws oil the United states, and therefore, void"t'
Howard, 572l
Immediately after this decision the State of New
York modified her statute on that subject with view,
no DOUBT, to avoid the constitutional objection, and
amendments and alterations have continued TO be made
upto the present time.
AS the law stands the master or owner OF every
vessel landing passengers from foreign port is bound
TO make report similar to the rected in the
statute held to be valid in the case OF New York vs.
Min, and on this report the Mayor indorse de-
mand upon the master owner that he give bond
for every passenger landed IN the city in the penal sum
oil $500, conditioned to indemnify the COmmssl oners
OF Emigration, and every county, city and town in the
State against any expense Tor the relief support of
the person named IN the bond, Tor Tour years there
alter But the owner or consignee may commute Tor
such bond be released from giving IT, by paying,
within twenty four hours after the landing OF the pas
sengers. the sum of 81 so Tor each one OF them. II
neither the bond be given the paid within the
twenty-four honrs penalty OF $500 is Incurred which
is made n lien on the vessel cOecable by attachment
at the suit of the Commissioners OF Emigration.
Conccding the authority Of the passenger cases,
which will be more fully considered hereafter il is arr
gued that the change IN the statute relied upon
requiring primarily bond for each passenger landed,
as an indemnity against his becoming future charge
TO the State or county leaving optional with the ship
owner to AVOID this by paying fixed sum Tor each
passenger takes ii out of the principle of the OF
Smith VS.. furner-the passenger from New York.
ii IS slid that the statute In that case was direct tax
on the passenger since the authorized the shpmas
ter TO collect II OF him. and that that ground alone
was IL held VOID, While IN the present case the require
ment ol the bond is but suitable regulation under
the power OF the state to protect its cities and towns
from the expense supporting persons who are pau
person diseased or helpless women and children
ing from foreign countries.
in whatever language a statute may be framed its
purpose must be determined by ITS natural and
Die effect; and II II Is apparent that the object of this
statute as judged by that criterion, is to compel the
owners OF vessels TO pay sum OF money tor every
passenger brought by them from foreign shore, and
landed at the port of New York. is as much tax on
passengers If collected from them, tax the
sci Tor the exercise OF the right of landing
their passengers in that city, the statute held
void IN the passenger cases.
10 require a heavy and almost impossible condition
to the Of this right with the alternative OF
payment OF small sum OF money, is in effect to de-
mand payment OF that sum To suppose that a vessel
which month lands from 800 to 900 passengers
from 600 to II 900 per annum, will give that many
bonds OF $500 with good sureties with covenant for
four against accident disease or poverty of the
passenger named IN sucn bond, Is absurd, when this
be avoided by the payment OF 81 90 collected OF
the passenger before he enuarks on the vessel.
such bonds would amount in many instances, for
overy voyage, to more than the value of the vessel
Tho liability the bond would be- through long lapse
OF time, contingent on circumstances which the bonds
man could neither foresee nor control The cost of
preparing the bond and approving sureties, with the
trouble incident case is greater than the
Dp
table under such law, that the money would be paid
Tor each passenger. tho statute resisted evaded
1t is law in It's purpose and elect imposing tax
the owner OF the vessel for the privilege OF landing in
New ork passengers transported from foreign coun-
tries
1t is said that the purpose of the is protect the
State against consequences OF the Hood OF paupcr
ism mlnigratng from Europe and first landing IN that
city
But II is strange mode of doing this TO tax every
passenger alike who comes from abroad.
The man who brings with him important additions
the wealth Of the country who is perfectly free from
disease and the who brings to aid the industry of
the country stout heart and strong ARM is as much
the subject OF the tax the diseased paupcr who may
become the object of the charity OF the city IN week
after he lands from the vessel
No Just rule make the citizen of France landing
from English vessel on our shore liable for the
support OF English Irish pauper who lands at the
same time from the same vessel
So far the authority Of the cases OF NeM FORK VS..
Min and the passenger be received as con
elusive, they decide that the requirement of cata
ogue OF passengers with statements OF their last resi-
dence and other matters OF that character proper
exercise of State authority, and that the requirement
of the bond the alternative payment of money Tor
each passenger is void because forbidden by the
stitution and laws OF the United States But the pas
senger $50 called because similar statute OF the
Stale OF Massachusetts the subject of considera-
ton the with that OF New York; were de-
cided by a bare majority of the Court Justices
Mclean, Wayne Catron, Mckinley aud Grier held
both statutes void, while Chief Justice fancy and
Justices Daniel, Nelson and Woodbury. held them
valid. Each member OF the Court delivered separate
opinion, giving the reasons for his Judgment except
J Judge Nelson, none of them protesting TO be the
thori;ative opinion of the Court. Nor there to be
found in the given by the judges who consti
tuted the majority such harmony of views as would
give that weight TO the decision which II lacks by
OF the divided judgments OF the members of the
Court Under these circumstances, with three cases
before arising under statutes OF three different
States the subject which have been discussed
as though open this Court TO all considerations
bearing upon the question, approach II with the
hope OF attaining unanmity not found in the opinions
OF our predecessors
As already indicated, the provisions OF the constitu
ton OF the United States which the principal reli-
ancc placed To make void the statute of New York
that which gives Congress the power ito regulate
commerce With foreign nations As was said in
United States VS. Holiday % Wall, 40, commerce
with foreign nations means commerce between citizens
OF the United States and citizens subjects of
foreign governments" Ii means trade and IL means
intercourse 1t means commercial intercourse between
nations and parts of nations in all us branches 1t in
cludes navigation. as the principal means by which
foreign intercourse Is effected To regulate this trade
shall be conducted 'rhe mind" says the great Chief
Justice, "can scarcely conceive system for regulating
commerce between nations which shall exclude all laws
navigation, which shall be silent on the ad
mission OF the vessels OF nation into the ports of
and he might have added, with equal force
which prescribed no terms for the admission OF their
cargo or their passengers. Gibbons VS. Ogden,
Wheaton, 1907
Since the delivery OF the opinion In that case which
has become the accepted canon of construction of this
clause Of the constitution as far as 1t extends, the
transportation of passengers from European ports TO
those Of the United States has attained magnitude
and importance far beyond its proportions ut that time
TO otncr branches OF commerce IL has become part
OF commerce with foreign nations OF vast interest
TO this country well to the INN grants who
among us TO nnd a welcome and home within our
borders In addition 10 the wealth which some Of
them bring, they bring still more largely the LABOR
which need TO ill our soil, build OR railroads and
develop the latent resources of the country IN its
minerals ITS manufactures aud its agriculture Is the
regulation OF this great system regulation of COM
mercer Can 1t be doubted that law which prescrlbcs
the terms which vessels shall engage II Is law
regulating this branch OF commercey
The transportation OF passenger from Liverpool to
the city OF New York is one voyage 1t Is not completed
until the passenger Is dsembarked the pier In the