Page images
PDF
EPUB

[Sup. Ct.

Opinion of the court.

aforesaid, he shall first pay out of the proceeds of such sale, the rent so due, and the surplus thereof, if any, he shall apply towards satisfying the judgment mentioned in such execution."

This statute being in force, Pennock rented a warehouse in Philadelphia to Wattson & De Young, at the yearly rent of $4500, payable in equal quarterly instalments. Wattson & De Young, the lessees, being in possession of the premises, and having therein a stock of goods more than sufficient to pay the rent if a distress had been made, were adjudicated bankrupts, and Longstreth, their assignee, took possession of the premises, and of the stock upon them. The landlord claimed of him the rent due and accrued up to the date of the issuing of the warrant in bankruptcy, and it having been paid to him under a stipulation to restore the same if the assignee were not allowed credit therefor on the settlement. of his account, and he not having been allowed such credit, this action was brought by him to test his right to get back what had been so paid for rent accruing prior to the warrant, which was for much less than a year's rent. The Circuit Court adjudged that the payment was rightfully made, and that the assignee could not recover it back. The assignee now brought the case here.

Mr. J. C. Longstreth, for the assignee, plaintiff in error; Mr. J. B. Townsend, contra.

*

Mr. Justice SWAYNE delivered the opinion of the court. The assignee acquired his title to the movable property found on the demised premises, subject to the rights of all other persons. The rent in question was for a period which terminated when the assignee took possession, and the entire period was within a year of that time. Before the commencement of the proceedings in bankruptcy, the defendants in error might have distrained; and it is agreed that the property upon the premises was more than sufficient to satisfy the demand. The statute of Pennsylvania, of June

* Gibson v. Warden, 14 Wallace, 244.

Statement of the case.

16th, 1836, provides that where property under such cir cumstances is seized and sold under execution, the rent due for a period not exceeding one year shall be paid first out of the pi ceeds of the sale. This case is within the equity tute. The question presented is one belonging law of Pennsylvania. We think it was correctly the Circuit Court.

of that to the l decided

JUDGMENT AFFIRMED.

CANNON V. NEW ORLEANS.

1. An ordinance of the city of New Orleans, which demands of all stcamboats which shall moor or land in any part of the port of New Orleans a sum measured by the tonnage of the vessel, is a tonnage tax within the meaning of the Federal Constitution, and, therefore, void.

2. It is a tax for the privilege of stopping in the port of New Orleans, and cannot be justified under the plea that it is intended as a compensation for the use of wharves built by the city.

3. For the use of wharves, piers, and similar structures, whether owned by individuals or by the city or other corporation, a reasonable compensation may be charged to the vessel, to be regulated in the interest of the public by the State legislature or city council.

4. But in the exercise of this right care must be taken that it is not made to cover a violation of the Federal Constitution, which prohibits the States to lay any duty of tonnage.

5. Any duty, or tax, or burden imposed under the authority of the States which is in its essence a contribution claimed for the privilege of arriving and departing from a port of the United States, and which is assessed on a vessel according to its carrying capacity, is a violation of that provision unless the consent of Congress be obtained.

ERROR to the Supreme Court of Louisiana; the case being

thus:

The Constitution of the United States ordains as follows:† "Congress shall have power to regulate commerce with foreign nations and among the several States, and with the Indian tribes. No State shall, without the consent of Congress, lay any duty of tonnage."

Sedgwick's Statutory and Constitutional Law, 296. † Article 1, 2 8, 10.

[blocks in formation]

Statement of the case.

With these provisions in force as fundamental law, the city of New Orleans made an ordinance as follows:

"From and after the 1st day of January, 1853, the levee dues on all steamboats which shall moor or land in any part of the port of New Orleans shall be fixed as follows: ten cents per ton if in port not exceeding five days, and five dollars per day after said five days shall have expired; provided, that boats arriving and departing more than once in each week shall pay only seven cents per ton each trip."

This ordinance was subsequently amended by the substitution of the words "levee and wharfage dues" for the words "levee dues," and by providing further that "boats making three trips per week shall pay five cents per ton each trip."

The length of both shores of the Mississippi embraced by the port of New Orleans is at least twenty-two miles. The entire portion of the shore on which wharves had been built, was at most two miles; less than one-tenth of the wharved space.

In this state of things and under the ordinance abovementioned, the city had claimed and collected of one Cannou for several years a tax on his steamboat, the R. E. Lee; and claiming it again Cannon filed a petition to enjoin such further collection, and also to recover back the money already paid. The ground of his petition was, that under each of the above-quoted clauses of the Constitution the ordinances were void. The Supreme Court of the State held the ordinance valid, and dismissed the petition. Its view was thus expressed:

"The same points that are made in this case, supported by the same line of argument as here, were presented in the case of The First Municipality v. Pease et al.,* and were decided adversely to the position taken by the plaintiff in this case. "We think the views there expressed correct.

"The levee dues,' under consideration, are not a duty on tonnage,' nor a regulation of or burden on commerce, nor a duty upon vessels plying between the States, within the contemplation of the Constitution of the United States, but charges

* 2 Annual, 540.

Argument for the plaintiff in error.

as compensation for commercial facilities furnished by the city, and for which, by the common consent of mankind, compensation is paid.* The question of the right to impose such charges, whether under the name of wharfage or levee dues, being judicially determined, the manner and extent of its exercise are left to those to whom the management of the municipal affairs are intrusted, under their responsibility to those whom they represent. The aggregate of charges may possibly be largely in excess of the actual necessary expenses during one year, and the very next be insufficient to meet. This will result from the nature of the river banks, the action of the river current, the quality and nature of materials used, the fluctuations of commerce, and many other causes unforeseen and irregular in their operation, and all which show the impossibility of judicial control and regulation of the subject."

From the decree of dismissal Cannon brought the case here.

Messrs. R. H. Marr, P. Phillips, and W. W. King, for the plaintiff in error. [The brief of these gentlemen mentioned, in the course of its argument, that in the year 1843, and in consequence of a very onerous wharfage tax imposed by the city in 1842, the legislature of Louisiana passed an act as follows:

"From and after the passage of the present act, it shall be incompetent for the mayor and city council of New Orleans, or for either of the municipalities of said city to enact, or enforce, or execute any law, ordinance, or regulation now enacted, whereby any tax, duty, impost, or charge of any nature whatsoever, shall be or is imposed upon goods, produce, wares, and merchandise of whatsoever kind or nature, landed in or shipped from the corporate limits of the said city."

They further stated that the Supreme Court of the State decided that after this act this wharfage tax could not be collected.t]

Mr. W. H. Peckham, contra.

* Worsley v. The Second Municipality, 9 Robinson, 332; Gibbons v. Ogden, 9 Wheaton, 235.

Worsley v. The Second Municipality, 9 Robinson, 326, note.

Opinion of the court.

Mr. Justice MILLER delivered the opinion of the court.

This writ of error is based upon the proposition that the city ordinance is in conflict with two clauses of the Constitution of the United States, namely, that which grants to Congress the right to regulate commerce with foreign nations, among the States, and with the Indian tribes; and that which forbids the States to levy any duty of tonnage without the consent of Congress.

We shall only consider the question raised by the latter clause.

It is argued in support of the validity of the ordinance that the money collected under it is only a compensation for the use of the wharves which are owned by the city, and which have been built and are kept in repair by the city corpora tion.

Under the evidence in this case of the condition of the levee and banks of the Mississippi River within the limits of the city, to which the language of the ordinance must be applied, this contention cannot be sustained. It is in proof that of the twenty miles and more of the levee and banks of the Mississippi within the city, not more than one-tenth has any wharf, and that vessels land at various places where no such accommodations exist. The language of the ordinance covers landing anywhere within the city limits. The tax is, therefore, collectible for vessels which land at any point on the banks of the river, without regard to the existence of the wharves. The tax is also the same for a vessel which is moored in any part of the port of New Orleans, whether she ties up to a wharf or not, or is located at the shore or in the middle of the river. 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 a bay, or landed at a natural river-bank, cannot be treated as a compensation for the use of a wharf. This view is additionally enforced if, as stated by counsel for the plaintiff, in their argument, the Supreme Court of the State has decided that, under the act of 1843

« ՆախորդըՇարունակել »