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hibition against state taxation of imports and exports. Each state may levy such tax on imports and exports as "may be absolutely necessary for executing its inspection laws." The inspection tax is an exception to the prohibition, contained in the very words thereof, and without which the tax would have been within the prohibition. It is a rule of interpretation that the exception of a particular thing from the general words of a constitutional provision or statute, proves that, in the opinion of the law-giver, the thing excepted would be within the general clause had the exception not been made.s

(m) TONNAGE DUTIES.

§ 363. The states prohibited from levying tonnage tax.-The constitution declares: "No state shall, without the consent of congress, lay any duty of tonnage;"49 and all state statutes in contravention of this prohibition are absolutely null and void.50

§ 364. Tonnage defined.-Tonnage, in the United States law of commerce and navigation, is a vessel's entire internal cubical capacity, expressed in tons of one hundred cubic feet each, to be estimated and ascertained in the manner and by the rules prescribed by the act of congress.51

§ 365. Tonnage tax defined.-"A duty of tonnage within the meaning of the constitution is a charge upon a vessel, according to its tonnage, as an instrument of commerce, for entering or leaving a port, or navigating the public waters of the country." 52 It has also been held that a statute of the

48 Brown v. Maryland, 12 Wheat. 420 (6:678); Turner v. Maryland, 107 U. S. 38 (27:370). See note to Turner v. Maryland, supra, containing analysis of state inspection laws.

49 U. S. Const. art. I, sec. 10, cl. 3.

50 Cox v. Lott, 12 Wall. 204 (20: 370); Mobile Trade Co. v. Lott, 12 Wall. 204, 220 (20:376); Peete v. Morgan, 19 Wall. 581 (22:201); Cannon v. New Orleans, 20 Wall. 522 (22:417); Inman Steamship

Co. v. Tinker, 94 U. S. 238 (24: 118); Southern Steamship Co. v. Masters of Port of New Orleans, 6 Wall. 131 (18:749).

51 13 U. S. Stat, at L. ch. 83, sec. 3, pp. 69-72, U. S. Rev. Stat. sec. 4153; Cox v. Lott, 12 Wall. 204, 220 (20:370); Inman Steamship Co. v. Tinker, 94 U. S. 238 (24:118).

52 Huse v. Glover, 119 U. S. 543 (30:478), opinion by Field, Justice; Cox v. Lott, 12 Wall. 204, 220 (20:370); Mobile Trade Co. v. Lott. 12 Wall. 221 (20:376); Inman

state of Louisiana, providing that the master and wardens of the port of New Orleans shall be entitled to demand and receive, in addition to other fees, the sum of five dollars, whether called on to perform any service or not, from every vessel arriving in that port, imposed a tonnage tax.53 In the course of the opinion in that case, it was said: "We think, also, that the tax imposed by the Act of Louisiana is, in the fair sense of the word, a duty on tonnage. In the most obvious and general sense it is true, those words describe a duty proportioned to the tonnage of the vessel; a certain duty on each ton. But it seems plain that, taken in this restricted sense, the constitutional provision would not fully accomplish its intent. The general prohibition upon the states against levying duties on imports and exports, would have been ineffectual if it had not been extended to duties on the ships which serve as the vehicles of conveyance. This extension was, doubtless, intended by the prohibition of any duty of tonnage. It was not only a pro rata tax which was prohibited, but any duty on the ship, whether a fixed sum on its whole tonnage, or a sum to be ascertained by comparing the amount of tonnage with the rate of duty. In this view of the case, the levy of the tax in question is expressly prohibited.'

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§ 366. The prohibition applies to vessels employed in local commerce. The constitutional inhibition against state tonnage tax extends to all ships and vessels entitled to the privileges

Steamship Co. v. Tinker, 94 U. S. 238 (24:118); Cannon v. New Orleans, 20 Wall. 557 (22:417).

53 Steamship Co. v. Port Wardens, 6 Wall. 31, 35 (18:749).

54 Steamship Co. v. Port Wardens, supra.

"Tonnage, in our law, is a vessel's 'internal cubical capacity in tons of one hundred cubic feet each, to be ascertained' in the manner prescribed by congress. Act of May 6, 1864, 13 Stat. at L. 70, 72; R. S. 804, sec. 4153. "Tonnage duties are duties upon vessels in proportion to their capacity.' The term was formerly applied to merchandise. Cowel,

in his Law Dictionary, published in 1708, thus defines it: "Tonnage (tonnagium) is a custom or import paid to the King for merchandise carried out or brought in ships, or such like vessels, according to a certain rate upon every ton, and of this you may read in the Statutes of 12 Edw. IV, ch. 3; 6 Hen. VIII, ch. 14." The vital principle of such a tax or duty is that it is imposed, whatever the subject, solely according to the rule of weight, either as to the capacity to carry, or the actual weight of the thing itself." Swayne, Justice, in Inman Steamship Co. v. Tinker, supra.

of ships and vessels employed in the coasting trade, whether employed in commercial intercourse between ports in different states, or between different ports and places in the same state."5

§ 367. The prohibition does not extend to property tax on vessels. Ships and vessels owned by individuals and belonging to the commercial marine are the private property of their owners, and are not instruments or means of the federal government, and are within the taxing power of the states; and an ad valorem tax levied by a state on such ships and vessels, as property, owned by citizens of the state is not within the constitutional prohibition against the laying of duties of tonnage."

56

§ 368. Charges for the use of local aids to commerce.— Wharfage.-A reasonable compensation charged for the use of artificial facilities and local aids to trade and commerce, and conveniences furnished and assistance rendered to ships and vessels, is not a tonnage tax; and, therefore, wharfage, which is a charge against a vessel for using or lying at a wharf or landing, is not within the constitutional prohibition against the

55 Cox v. Lott, 12 Wall. 204 (20: 370); Mobile Trade Co. v. Lott, 12 Wall. 221 (20:376).

56 Wheeling, Parkersburg and Cincinnati Transportation Co. v. City of Wheeling, 98 U. S. 273, 285 (25:412); Cox v. Lott, 12 Wall. 204 (20:370); Mobile Trade Co. v. Lott, 12 Wall. 221 (20:376).

"Power to impose taxes for legitimate purposes resides in the states as well as in the United States; but the states cannot, without the consent of congress, lay any duty of tonnage, nor can they levy any imposts or duties on imports or exports except what may be absolutely necessary for executing their inspection laws, as without the consent of congress they are prohibited from exercising any such power. Outside of these prohibitions, the power of the state extends to all objects within their sovereign power, ex

cept the means and instruments of the federal government.

"Taxes levied by a state upon ships or vessels as instruments of commerce and navigation are within the clause of the constitution which prohibits the states from levying any duty of tonnage without the consent of congress; and it makes no difference whether the ships or vessels taxed belong to the citizens of the state which levies the tax or to the citizens of another state, as the prohibition is general, withdrawing altogether from the states the power to lay any duty of tonnage under any circumstances, without the consent of congress.

"Tonnage duties on ships by the states are expressly prohibited, but taxes levied by a state upon ships or vessels owned by citizens of the state as property, based on a valuation of the same as prop

states laying tonnage duties, although the rates of wharfage charged are graduated by the size or tonnage of the vessel.57

§ 369. Same Same.-A charge for services rendered, or for conveniences provided, is in no sense a tax or duty. It is not a hindrance or impediment to free navigation. The prohibition of the state against the imposition of a duty of tonnage was designed to guard against local hindrances to trade and carriage by vessels, not to relieve them from liability to claims for assistance rendered and facilities furnished to trade and commerce. It is a tax or duty that is prohibited; something imposed by virtue of sovereignty, not claimed in right of proprietorship. Wharfage is of the latter character. Providing a wharf to which vessels may make fast, or at which they may conveniently load or unload, is rendering them a service.58 The exaction of tolls by the state, from vessels passing through locks constructed by the state in a navigable river, is but a compensation for the use of artificial aids to commerce, constructed for the improvement of navigation, and not an impost upon the navigation of the stream.59

§ 370. Same Same What is not wharfage.-A tax which is, by its terms, due from all vessels arriving and stopping in a port, without regard to the place where they may stop, whether it be in the channel of the stream, or out in the bay, or landed at a natural river bank where there are no artificial facilities or constructions maintained as local aids to commerce, cannot be treated as a compensation for the use of a wharf; and an ordinance of the city of New Orleans which imposes upon all steamboats which shall moor or land in any part of the port of New Orleans certain levee fees measured by the tonnage of the vessel is a tonnage tax within the meaning of the

erty, are not within the prohibition, for the reason that the prohibition, when properly construed, does not extend to the investments of the citizens in such structures." Clifford, Justice, in Wheeling, Parkersburg & Cincinnati Transportation Co. v. City of Wheeling, 98 U. S. 273, 285 (25:412).

57 Transportation Co. v. Parkersburg, 107 U. S. 691 (27:584); Keokuk Northern Line Packet Co.

v. Keokuk, 95 U. S. 80, 89 (24: 376); Northwestern Union Packet Co. v. St. Louis, 100 U. S. 423, 430 (25:688); Huse v. Glover, 119 U. S. 543, 550 (30:487); Packet Co. v. Cattletsburg, 105 U. S. 559 (26: 1169); Vicksburg v. Tobin, 100 U. S. 430 (25:690).

58 Packet Co. v. Keokuk, 95 U. S. 80 (24:377).

59 Huse v. Glover, 119 U. S. 543, 550 (30:487).

provision of the federal constitution inhibiting the states from levying any tonnage tax, and is, therefore, void.60

§ 371. Tonnage tax cannot be levied to defray cost of executing quarantine regulations.-The power to establish and execute quarantine laws and regulations resides in the states, and has not been surrendered to the general government. The source of this power is in the acknowledged right and impera

60 Cannon v. New Orleans, 20 Wall. 577 (22:417).

In deciding the case here cited, holding the ordinance of the City of New Orleans void, as being in conflict with the constitutional inhibition, Mr. Justice Miller, delivering the opinion of the court, said:

"We are of opinion that, upon the face of the ordinance itself, as applied to the recognized conIdition of the river and its banks within the city, the dues here claimed cannot be supported as a compensation for the use of the city's wharves, but that it is a tax upon every vessel which stops, either by landing or mooring, in the waters of the Mississippi river within the city of New Orleans, for the privilege of so landing or mooring. In this view of the subject, as the assessment of the tax is measured by the tonnage of the vessel, it falls directly within the prohibition of the constitution, namely: "That no state shall, without the consent of congress, lay any duty of tonnage.' Whatever more general or more limited view may be entertained of the true meaning of this clause, it is perfectly clear that a duty or tax or burden imposed under the authority of the state, which is, by the law imposing it, to be measured by the capacity of the vessel, and is in its essence a con

tribution claimed for the privilege of arriving and departing from a port of the United States, is within the prohibition. .. In saying this we do not understand that this principle interposes any hindrance to the recovery from any vessel landing at a wharf or pier, owned by an individual or by a municipal or other corporation, a just compensation for the use of such property. It is a doctrine too well settled, and a practice too common and too essential to the interests of commerce and navigation, to admit of a doubt that for the use of such structures, erected by individual enterprise, and recognized everywhere as private property, a reasonable compensation can be exacted. And it may be safely admitted, also, that it is within the power of the state to regulate this compensation, so as to prevent extortion, a power which is often very properly delegated to the local municipal authority.

"Nor do we see any reason why, when a city or other municipality is the owner of such structures, built by its own money, to assist vessels landing within its limits in the pursuit of their business, the city should not be allowed to exact and receive this reasonable compensation as well as individ

uals."

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