The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-08-23

Wall, $50; ex parts Mcneil Is WALL 2lo.l Tonnage
10 our law Is a vessels internal cubca capacity In
tons Of 100 cubic feet each 10 be ascertaned in the
manner prescribed by ConRresG' (Act OF May O.
1854. 10 Stat, PIP 10, ~ Rev stat. u s. so4. sec
ion 4.lssl Tonnage duties are duties upon vessels
IN proportion 10 their capacity" (Bouv Law Die "Ton
mage. " The term formerly applied TO merchandise.
Cowe; In hts law dictionary published IN lI0s, thus
defines observation-disclosures a custom or
impost paid King for merchindisc carried out
or brought in SHIPS such like vessels according TO
ps cs's'u rate upon every ton snS Of lns ypa may
STU chap, H. &c. The vital principl" OF such tax
or duty is that II is imposed, Whatever the subject,
CAPACITY TO carry or the actual weight OF the Thing IT.
self In this law OF the state there arc several IN
portant points that must not be overlooked. The
charge exacicd for any services rendered or Of
Tered TO be rendered II the vessel enter the port and
make fast TO any wharf either OF these things dis
Junctvely brings her within the her Ina
bio 10 the burden prescribed. The charge Is applied
wholly irrespective OF the ad vaorem principle. II
either OF tho three vessels oil the appellant
was new and making her first voyage, and apoher OF
the same tonnage was making ner last trp belor 0
being broken up aud the former OF many times
the value OF tho latter tho act would apply the
procruslsan rule to both. The rate OF payment and
same. Tho act makes discrimination. To one class
OF vessels II applies the rats here In question. to
another class double tho rate and 10 yet another class
ponc AZ ALL Those belonging TO the latter wholly
exempted. We think clearer case of the imposition
Of tonnage duty than Is presented in the record bc
fore US hardly be imagined. II the law had been
passed by Congrcss Instead OF the State, and the
Charge imposed had been expressly designated ton
mage duty rs character us such could not appear in
stronger light But the name Is immaterial; u Is the
substance We are 10 consider. II does not advance
the argument LcbnIt OF the appellee to main.
tam mat the re- uiations prescribed bv the
act are necessary and proper IN the port for
which they arc provided. IL Is not our
purpose to examine them to the proposition
In hand II may be that aside from the imposition OF
this tax they contain nothing exccptionab,e and that
in all other respects they are wise ami sc consd-
cred Similar provisions, varying according TO local
circumstances exist AZ all important points through
ne har pQrtas M Hnhs ia
They are Indispensable 10 those engaged IN that bus
ness. They fence out many evils aud promote largely
this field OF enterprise Perhaps Is hardly strong
language 10 say they arc well nigh vital to
Itself. II may he conceded, also that foreign steam
ships and other vessels visiting the port OF State Tor
business purposes may lie made liable by the laws OF
such STATE Tor all reasonable aud proper port charges
Ths Is but lar return Tor the benents received But
such charges must not DO repugpant to the constitution
OF the United States Any conflict Is fatal to them.
The warrant for such competent legislation may
found in that immense OF police aud other
which the states originally possessed, which they
not parted WITH aud len still belougs to tn en- or II
may In some cases DO found amoug those which the
States may exercise, but only until Cong shall
a. to act upon the subject Tho authority OF tns State
then reres anu lies IN abeyance until the
It's exercise shall recur Elk parte Mcneil, IL Wall,
24o Powers not delegated to tho United States by
reserved 10 the States respectively or TO tho people,
Constitutional amendment, ~. The Stale, In passing
TINS Law imposing tonnage duty has exercised
IN that particular the law is therefore void. This
case is Sustained by the rulings OF this
Court in the State Tonnage Tax cases,
IL WaIl 204, and Cannon VS.. New Orleans,
20 ID, so. SEQ also Steamship Company vs.. Port
Wardens, Id, 81, and Pcote Morgan, 10 ID. 6Si.
The tax imposed Ia not merely mode oil measuring
the compensation to be paid The answer TO this sug
gcst1n Is that II IL exacted where there nothing
be paid for and has reference TO any
this connection but tho tonnage Of the vessel and
the Class to which II belongs The commerce clauses
OF the constitution had their origin anu saln
tary policy They give TO Congress the control
of the foreign aud interstate Of coun-
try. They were intended 10 secure harmony and uu l.
iormry IN tho regulations by which they should DO
governed Wherever such commerce goes the power
Of the nation accompanies u, ready anu com
petcnt, US far as possible TO promote Its
prosperity and redress the wrongs and evils
TO which u may be subjected II was deemed
especially important that tho states should not impose
tonnage taxes. Hence tho prohibition in the constu
ion without the assent oil Congress previously given.
The confusion and mischief that would ensue Il this
restriction were removed too obvious require
comment Tho lesson up1u the subject taught by the
law before Us Is an Impressive one. How the charges
which IL Is conceded the state may impose must be
SNAPPED IN order To DO valid subject which 1t is not
within our province 10 consider, and in regard TO
which 1t would not be proper for to express any
opinion. We decide only tho point before u.s. Tue
decree OF the Circuit Court reversed and the
will be rcmsnded with directions TO proceed con.
formty to this opinion.
The Chief Justice did not sit In this case and took
part In ts decision Mr. Justice sway delivered
the opinion.