The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-03-31
AN IMPORTANT DECISION.
Towage Dues on Canals.
Bayou nj. John a Nayigable Stream.

Monroe, OF the Third District Court.
will be read with much interest by
those engaged in commerce. For many
years there have been too many bur-
dens placed upon vessels at this port,
and this decision will tighten at least
some of them;
oARoNpfLBr CANAL AND NAVIGATION COM
pANY vs.. FIRED SMITH, OWNER, ETC
NO. %, 356. -~REAsoNs FoR
JUDGMENT.
| Plaintiffs. claiming under the author
| ity OF certain acts OF the Legislature of
Louisiana, sue the defendant as owner
Of the schooner "Sappho," for the sum
of twenty-one dollars, being tolls at the
ratio OF 5b cents per ton upon the ed.
measured tonnage Of said schooner for
eight several passes granted to said
Defendant denies the right Of plain
| tiffs to recover, for this:
|. That the Bayou st. John Is nat
ural navigable stream emptying into
Lake Pontchartrain and connected
with the Gulf OF Mexico, and Is public
| property, free to use Of ell citizens OF
this and other States of the Union, who
have u natural right to navigate said
stream with their vessels and to moor
the same to the banks thereof.
2. That by the act Of Congress ad-
mitting Louisiana as State into the
Union Il was made an express proviso
and condition that tho river Mississippi
and the navigable rivers and waters
| leading into the same, and into the Gulf
Of Mexico, should be forever common
highways, free to the inhabitants Of all
the States and Territories of the United
States. without tolls or duties therefor
| imposed by said State, and that by sec
tion 1851 Of the Revised Statutes OF the
United States oil navigable rivers and
waters In the former Territories Of Or.
leans and Louisiana are made forever
public highways.
3. That the charge sought to be col
| lected is duty Of tonnage imposed by
the State of Louisiana, without the con-
sent of Congress, and 10 within the pro-
hibition contained In so much OF section
10. article y. s. Constitution as pro-
vides that mo State shall, without the
consent Of Congress, lay any duty OF
tonnage"
There ID no dispute as to the facts Of
the case, which from the testimony ad-
duced and the admission Of the parties
appear to be as follows:
Bayou st. John has always been nav
igable stream for vessels, such as defen-
| 6s
and flows into Lake Pontehartrain with
out passing through any other State or
territory. Plaintiffs under the provi-
sions Of their charter granted by the
State OF Louisiana, have, however, at
their own expense, dredged and cleaned
out said bayou, and have deepened the
channel and extended the same through
the bar. which otherwise blocks the
| mouth Of tyaid bayou 10 oil but very
| tryh n rnF gni1 np.
now, from time to time, employ dredge-
boats, and do other work necessary to
maintain such depth Of water on said
| bar and In said bayou as to keep the
same accessible to and navigable for ves-
sells of heavier draft than that owned
by defendant.
It further appears that defendant has
always lived upon or in the neighbor-
hood of said bayou, and that he earns
his livelihood by the use and hiring OF
his boat, which is OF very light draft !;
and that to the extent Of the use and
enjoyment Of said bayou for which the
toll is herein claimed, the said bayou,
In its natural condition, Is accessible to
and navigable for defendants vessel.
| Upon the argument Of the case 1t wes
conceded by counsel for defendant that,
Notwithstanding the provisions con-
tanned in the act OF Congress admitting
Louisiana into the Union, the power OF
said State over the navigable streams
within her borders Is limited by no
other restrictions than those limiting
the power Of the other States.
The questions to be determined In
this case may, therefore, be resolved
into two propositions, to-wit:
Frst-Is the sum claimed duty Of
tonnage, within the prohibition con-
tanned In section 10 Of article Of the
constitution Of the United States.
Second-Has Congress consented that
the State OF Louisiana should lay and
collect the duty in question?
Considering the first Of these PROPOSE
tions, it appears that the charge made
| by plaintiffs Is based upon the tonnage
of the vessel at specified rate per ton,
and is made upon the authority of
provision Of plaintiffs charter, empow-
ering the president and directors to
ask and receive from every vessel pass
ing in or out Of the said bayou a sum
not exceeding one dollar for every ton
Of the admeasured burthen Of said ves-
SELL" etc.
The duty Of tonnage which the con-
stitution OF the United States prohibits
has been we'll defined to be:
"Any duty or tax on a ship as such,
without regard to the residence Of her
owner, whether it be a fixed sum upon
its whole tonnage or a sum to be ascer-
tanned by comparing the amount Of
tonnage with the rate Of duty; when
ship, as an instrument OF COM
merce is required to pay a duty
! as condition to her being
allowed to enter or depart
from port, or load or unload
a cargo, either upon her tonnage,
her property or as a license to her
Chicago Central, Law Journal. January
2l, 1876; Gibbons vs.. Ogden. 9 Wheat, 1.
Pass enger cases. Howard, 459; Steam
ship Company VS.. Port Wardens, Wall.
D. 81. State tonnage cases-12 Wall. 212 /;
Peete VS.. Morgan, 19 Wall.
There can oe no doubt that the duty
in question comes within the meaning