Passenger Cases - 48 U.S. 283 (1849) • Syllabus • Case U.S. Supreme Court Passenger Cases, 48 U.S. 7 How. 283 283 (1849) Passenger Cases 48 U.S. (7 How.) 283 ERROR TO THE COURT FOR THE TRIAL OF IMPEACHMENTS AND CORRECTION OF ERRORS OF THE STATE OF NEW YORK AND THE SUPREME JUDICIAL COURT OF MASSACHUSETTS Syllabus Statutes of the states of New York and Massachusetts, imposing taxes upon alien passengers arriving in the ports of those states declared to be contrary to the Constitution and laws of the United States, and therefore null and void. Inasmuch as there was no opinion of the Court as a Court, the reporter refers the reader to the opinions of the judges for an explanation of the statutes and the points in which they conflicted with the Constitution and laws of the United States. These were kindred cases, and were argued together. They were both brought up to this Court by writs of error issued under the twenty-fifth section of the Judiciary Act, the case of Smith v. Turner being brought from the Court for the Trial of Impeachments and Correction of Errors of the State of New York, and the case of Norris v. City of Boston from the Supreme Judicial Court of Massachusetts. The opinions of the justices of this Court connect the two cases so closely, that the same course will be pursued in reporting them which was adopted in the License Cases. Many of the arguments of counsel relate indiscriminately to both. A statement of each case will, therefore, be made separately, and the arguments and opinions be placed in their appropriate class, as far as practicable. SMITH v. TURNER In the first volume of the Revised statutes of New York, pages 445, 446, title 4, will be found the law of the state whose constitutionality was brought into question in this case. The law relates to the marine hospital, then established upon Staten Island, and under the superintendence of a physician and certain commissioners of health. The seventh section provides, that The health commissioner shall demand and be entitled to receive, and in case of neglect or refusal to pay shall sue for and recover in his name of office Page 48 U. S. 284 the following sums from the master of every vessel that shall arrive in the port of New York, viz.: 1. From the master of every vessel from a foreign port, for himself and each cabin passenger, one dollar and fifty cents for each steerage passenger, mate, sailor, or mariner, one dollar. 2. From the master of each coasting vessel, for each person on board, twenty-five cents, but no coasting vessel from the States of New Jersey, Connecticut, and Rhode Island shall pay for more than one voyage in each month, computing from the first voyage in each year. The eighth section provides that the money so received shall be denominated hospital moneys. And the ninth section gives each master paying hospital moneys a right to demand and recover from each person the sum paid on his account. The tenth section declares any master who shall fail to make the above payments within twenty-four hours after the arrival of his vessel in the port shall forfeit the sum of one hundred dollars. By the eleventh section, the commissioners of health are required to account annually to the comptroller of the state for all moneys received by them for the use of the marine hospital; and if such moneys shall in anyone year exceed the sum necessary to defray the expenses of their trust, including their own salaries, and exclusive of such expenses as are to be borne and paid as a part of the contingent charges of the City of New York, they shall pay over such surplus to the treasurer of the Society for the Reformation of Juvenile Delinquents in the City of New York, for the use of the society. Smith was master of the British ship Henry Bliss, which arrived at New York in June, 1841, and landed two hundred and ninety-five steerage passengers. Turner, the health commissioner, brought an action against him for the sum of $295. To this the following demurrer was filed, viz.: And the said George Smith, defendant in this suit, by M. R. Zabriskie, his attorney, comes and defends the wrong and injury, when &c., and says that the said declaration, and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law for the said plaintiff to have or maintain his aforesaid action thereof against the said defendant, and that the said defendant is not bound by law to answer the same; for that the statute of this state, in said declaration referred to, in pursuance of which the said plaintiff claims to be entitled to demand and receive from the said defendant the sum of money in said declaration named, is contrary to the Constitution of the United States, and void, and this he is ready to verify. The plaintiff joined in demurrer, and the Supreme Court Page 48 U. S. 285 of Judicature of the People of the State of New York overruled the demurrer, and gave judgment for the plaintiff, on 28 September, 1842. The cause was carried, by writ of error, to the Court for the Trial of Impeachments and Correction of Errors, which affirmed the judgment of the court below in October, 1843. A writ of error, issued under the twenty-fifth section of the Judiciary Act, brought the case up to this Court. NORRIS v. CITY OF BOSTON Norris was an inhabitant of St. Johns, in the Province of New Brunswick and Kingdom of Great Britain. He was the master of a vessel, and arrived in the port of Boston in June, 1837, in command of a schooner belonging to the port of St. Johns, having on board nineteen alien passengers. Prior to landing, he was compelled, by virtue of a law of Massachusetts which is set forth in the special verdict of the jury, to pay the sum of two dollars for each passenger to the City of Boston. At the October term, 1837, of the court of common pleas, Norris brought a suit against the City of Boston, to recover this money, and was nonsuited. The cause was carried up to the Supreme Judicial Court, where it was tried in November, 1842. The jury found a special verdict as follows: The jury find, that at a session of the Legislature of the Commonwealth of Massachusetts, holden at the City of Boston, on 20 April, 1837, the following law was passed and enacted, to-wit, An act relating to alien passengers. Sec. 1st. When any vessel shall arrive at any port or harbor within this state, from any port or place without the same, with alien passengers on board, the officer or officers whom the mayor and aldermen of the city, or the selectmen of the town, where it is proposed to land such passengers, are hereby authorized and required to appoint, shall go on board such vessels and examine into the condition of said passengers. Sec. 2d. If, on such examination, there shall be found among said passengers any lunatic, idiot, maimed, aged, or infirm person, incompetent, in the opinion of the officer so examining, to maintain themselves, or who have been paupers in any other country, no such alien passenger shall be permitted to land until the master, owner, consignee, or agent of such vessel shall have given to such city or town a bond in the sum of one thousand dollars, with good and sufficient security, that no such lunatic or indigent passenger shall become a city, town, or state charge within ten years from the date of said bond. Page 48 U. S. 286 Sec. 3d. No alien passenger, other than those spoken of in the preceding section, shall be permitted to land until the master, owner, consignee, or agent of such vessel shall pay to the regularly appointed boarding officer the sum of two dollars for each passenger so landing, and the money so collected shall be paid into the Treasury of the city or town, to be appropriated as the city or town may direct for the support of foreign paupers. Sec. 4th. The officer or officers required in the first section of this act to be appointed by the mayor and aldermen, or the selectmen, respectively, shall, from time to time, notify the pilots of the port of said city or town of the place or places where the said examination is made, and the said pilots shall be required to anchor all such vessels at the place so appointed, and require said vessels there to remain till such examination shall be made; and any pilot who shall refuse or neglect to perform the duty imposed upon him by this section, or who shall through negligence or design permit any alien passengers to land before such examination shall be had, shall forfeit to the city or town a sum not less than fifty nor more than two thousand dollars. Sec. 5th. The provisions of this act shall not apply to any vessel coming on shore in distress, or to any alien passengers taken from any wreck when life is in danger. Sec. 6th. The twenty-seventh section of the forty-sixth chapter of the Revised statutes is hereby repealed, and the twenty-eighth and twenty-ninth sections of the said chapter shall relate to the provisions of this act in the same manner as they now relate to the section hereby repealed. Sec. 7th. This act shall take effect from and after the passage of the same, April 20th, 1837. And the jury further find, that the twenty-eighth and twenty-ninth sections, above referred to, are in the words following, to-wit: Sec. 28th. If any master or commanding officer of any vessel shall land, or permit to be landed, any alien passengers, contrary to the provisions of the preceding section, the master or commanding officer of such vessel, and the owner or consignee thereof, shall forfeit the sum of two hundred dollars for every alien passenger so landed; provided always that the provisions aforesaid shall not be construed to extend to seamen sent from foreign places by consuls or vice-consuls of the United States. Sec. 29th. If any master or commanding officer of any vessel shall land any alien passenger at any place within this state other than that to which such vessel shall be destined, Page 48 U. S. 287 with intention to avoid the requirements aforesaid, such master or commanding officer shall forfeit the sum of one hundred dollars for every alien passenger so landed. And the jury further find, that the plaintiff in the above action is an inhabitant of St. Johns, in the Province of New Brunswick and Kingdom of Great Britain; that he arrived in the port of Boston on or about the twenty-sixth day of June, A.D. 1837, in command of a certain schooner called the Union Jack, of and belonging to said port of St. Johns; there was on board said schooner at the time of her arrival in said port of Boston nineteen persons who were passengers in said Union Jack, aliens to each and every of the states of the United States, but none of them were lunatic, idiots, maimed, aged, or infirm. That prior to the landing of said passengers the sum of two dollars for each and every passenger was demanded of the plaintiff by Calvin Bailey, in the name of the City of Boston, and said sum, amounting to thirty-eight dollars, was paid by the plaintiff to said Bailey, for permission to land said alien passengers in said Boston; said sum being paid by the plaintiff under a protest that the exacting the same was illegal. That said Calvin Bailey was the regularly appointed boarding officer for said City of Boston, chosen by the city council (consisting of the mayor and aldermen) in pursuance of said act, entitled An act relating to alien passengers; that as such, said Bailey demanded and received said sum of thirty-eight dollars. But whether upon the aforesaid facts the defendant did promise, the jury is ignorant. If the court shall be of opinion that the aforesaid facts are sufficient to sustain the plaintiffs claim, then the jury find that the defendant did promise, in manner and form as the plaintiff hath alleged, and assess damages in the sum of thirty-eight dollars. But if the court are of opinion that the aforesaid facts are not sufficient to sustain the plaintiffs claim, then the jury find that the defendant did not promise in manner and form as the plaintiff hath alleged. Upon this special verdict the court gave judgment for the defendant, from which judgment a writ of error brought the case up to this Court. Page 48 U. S. 392 MR. JUSTICE McLEAN. SMITH v. TURNER Under the general denomination of health laws in New York, and by the seventh section of an act relating to the marine hospital, it is provided that the health commissioner shall demand and be entitled to receive, and in case of neglect or refusal to pay shall sue for and recover, in his name of office, the following sums from the master of every vessel that shall arrive in the port of New York, viz.: 1. From the master of every vessel from a foreign port, for himself and each cabin passenger, one dollar and fifty cents; for each steerage passenger, mate, sailor, or mariner, one dollar. 2. From the master of each coasting vessel, for each person Page 48 U. S. 393 on board, twenty-five cents, but no coasting vessel from the States of New Jersey, Connecticut, and Rhode Island shall pay for more than one voyage in each month, computing from the first voyage in each year. The eighth section provides that the money so received shall be denominated hospital moneys. And the ninth section gives each master paying hospital moneys a right to demand and recover from each person the sum paid on his account. The tenth section declares any master, who shall fail to make the above payments within twenty-four hours after the arrival of his vessel in the port, shall forfeit the sum of one hundred dollars. By the eleventh section, the commissioners of health are required to account annually to the comptroller of the state for all moneys received by them for the use of the marine hospital, and if such moneys shall, in anyone year, exceed the sum necessary to defray the expenses of their trust, including their own salaries, and exclusive of such expenses as are to be borne and paid as a part of the contingent charges of the City of New York, they shall pay over such surplus to the treasurer of the Society for the Reformation of Juvenile Delinquents in the City of New York, for the use of the society. The plaintiff in error was master of the British ship Henry Bliss, which vessel touched at the port of New York in the month of June, 1841, and landed two hundred and ninety steerage passengers. The defendant in error brought an action of debt on the statute against the plaintiff, to recover one dollar for each of the above passengers. A demurrer was filed, on the ground that the statute of New York was a regulation of commerce, and in conflict with the Constitution of the United States. The supreme court of the state overruled the demurrer, and the court of errors affirmed the judgment. This brings before this Court, under the twenty-fifth section of the Judiciary Act, the constitutionality of the New York statute. I will consider the case under two general heads: 1. Is the power of Congress to regulate commerce an exclusive power? 2. Is the statute of New York a regulation of commerce? In the eighth section of the First Article of the Constitution it is declared that Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. Before the adoption of the Constitution, the states, respectively, exercised sovereign power, under no other limitations than those contained in the Articles of Confederation. By the third section of the Sixth Article of that instrument, it was declared that No state shall lay any imposts or duties which may Page 48 U. S. 394 interfere with any stipulations in treaties entered into by the United States in Congress assembled, and this was the only commercial restriction on state power. As might have been expected, this independent legislation, being influenced by local interests and policy, became conflicting and hostile, insomuch that a change of the system was necessary to preserve the fruits of the Revolution. This led to the adoption of the federal Constitution. It is admitted that, in regard to the commercial, as to other powers, the states cannot be held to have parted with any of the attributes of sovereignty which are not plainly vested in the federal government and inhibited to the states, either expressly or by necessary implication. This implication may arise from the nature of the power. In the same section which gives the commercial power to Congress, is given power to borrow money on the credit of the United States, to establish a uniform rule of naturalization, to coin money, to establish post offices and post roads, to constitute tribunals inferior to the Supreme Court, to define and punish piracies and felonies committed on the high seas, to declare war, to provide and maintain a navy, &c., and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. Only one of these powers is, in the Constitution, expressly inhibited to the states, and yet, from the nature of the other powers, they are equally beyond state jurisdiction. In the case of Holmes v. Jennison, 14 Pet. 570, the Chief Justice, in giving his own and the opinion of three of his brethren, said: All the powers which relate to our foreign intercourse are confided to the general government. Congress have the power to regulate commerce, to define and punish piracies, &c. Where an authority is granted to the Union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant, there the authority to the federal government is necessarily exclusive, and the same power cannot be constitutionally exercised by the states. P. 39 U. S. 574. In Houston v. Moore, 5 Wheat. 23, the Court said: We are altogether incapable of comprehending how two distinct wills can, at the same time, be exercised in relation to the same subject, to be effectual, and at the same time compatible with one another. The Court, again, in treating of the commercial power, said in Gibbons v. Ogden, 9 Wheat. 196: It is the power to regulate -- that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and Page 48 U. S. 395 acknowledges no limitations other than are prescribed in the Constitution. . . . The sovereignty of Congress, though limited to specified objects, is plenary as to those objects. The power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government having in its Constitution the same restrictions, &c. And in the same case, page 22 U. S. 199: Where, then, each government exercises the power of taxation, neither is exercising the power of the other; but when a state proceeds to regulate commerce with foreign nations, or among the several states, it is exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do. And Mr. Justice Johnson, who gave a separate opinion in the same case, observes The power to regulate commerce here meant to be granted was the power to regulate commerce which previously existed in the states. And again, The power to regulate commerce is necessarily exclusive. In Brown v. State of Maryland, 12 Pet. 446, the Court said It is not, therefore, matter of surprise that the grant of commercial power should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the states. This question, they remark, was considered in the case of Gibbons v. Ogden, in which it was declared to be complete in itself, and to acknowledge no limitations, &c. And Mr. Justice Baldwin in the case of Groves v. Slaughter, 15 Pet. 511, says That the power of Congress to regulate commerce among the several states is exclusive of any interference by the states has been, in my opinion, conclusively settled by the solemn opinions of this Court in the two cases above cited. And he observes If these decisions are not to be taken as the established construction of this clause of the Constitution, I know of none which are not yet open to doubt. Mr. Justice Story, in the case of New York v. Miln, 11 Pet. 158, in speaking of the doctrine of concurrent power in the states to regulate commerce, says that in the case of Gibbons v. Ogden, it was deliberately examined and deemed inadmissible by the court. . . . Mr. Chief Justice Marshall, with his accustomed accuracy and fullness of illustration, reviewed at that time the whole grounds of the controversy, and from that time to the present the question has been considered, so far as I know, at rest. The power given to Congress to regulate commerce with foreign nations and among the states has been deemed exclusive from the nature and objects of the power and the necessary implications growing out of its exercise. Page 48 U. S. 396 When the commercial power was under discussion in the convention which formed the Constitution, Mr. Madison observed that he was more and more convinced that the regulation of commerce was in its nature indivisible, and ought to be wholly under one authority. Mr. Sherman said The power of the United States to regulate trade, being supreme, can control interferences of the state regulations when such interferences happen, so that there is no danger to be apprehended from a concurrent jurisdiction. Mr. Langdon insisted that the regulation of tonnage was an essential part of the regulation of trade, and that the states ought to have nothing to do with it. And the motion was carried that no state shall lay any duty on tonnage without the consent of Congress. 3 Madison Papers 1585, 1586. The adoption of the above provision in the Constitution, and also the one in the same section -- that no state shall, without the assent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts shall be for the use of the Treasury of the United States, and all such laws shall be subject to the revision and control of the Congress is a restriction, it is contended, upon the acknowledged power of the states. The force of this argument was admitted by the court in the case of Gibbons v. Ogden, and it was answered by the allegation, that the restriction operated on the taxing power of the states. The same argument was used in the thirty-second number of the Federalist. I yield more to the authority of this position than to the stringency of the argument in support of it. To prohibit the exercise of a power by a state, as a general rule, admits the existence of such power. But this may not be universally true. Had there been no inhibition on the states as to coining money and fixing the value thereof, or as to tonnage duties, it could not have been successfully contended that the states might exercise those powers. All duties are required to be uniform, and this could not be the result of state action. And the power to coin money and regulate its value, for the Union, is equally beyond the power of a state. Doubts may exist as to the true construction of an instrument in the minds of its framers, and to obviate those doubts, additional, if not unnecessary, provisions may be inserted. This remark applies to the Constitution in the instances named, and in others. A concurrent power in the states to regulate commerce is an anomaly not found in the Constitution. If such power exist, it may be exercised independently of the federal authority.
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