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A treatise on the law of carriers (Volume 4) online

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The law is valid, at least so far as commercial intercourse may be carried on be-
tween the parts of the state named in said act by citizens of the state, and there-
fore does not conflict with the provision in the United States constitution pro-
viding that congress shall have power to regulate commerce with foreign nations
and among the several states, etc.^^

Tax on Steamboat Engineer.- — The New York city charter, makes it a mis-
demeanor for one to act as an engineer for the purpose -of operating a steam
boiler, save for private dwellings for heating purposes or for locomotives, with-
out a certificate of qualification. Though applicable to one acting as engineer of
a boiler situated on a scow on the East river, and used for blasting purposes, the
statute did not impose a burden on commerce. ^-

§ 3969. Registered under Laws of United States. — Vessels engaged in
foreign or interstate commerce, and duly enrolled and licensed under the acts of
congress, may be taxed by state authority as property ; provided, the tax be not a
tonnage duty, is levied only at the port of registry, and is valued as other prop-
erty in the state, without unfavorable discrimination on account of its employ-
ment. '•^•'^ Steamboats which ply between dififerent ports on a navigable river may,
under a state statute, be taxed as personal property by the city where the company
owning them has its principal office, and which is there home port, although they
are duly enrolled and licensed as coasting vessels under the laws of the United
States, and all fees and charges thereon demandable under those laws have been
duly paid.^'* Vessels, which, though engaged in interstate commerce, are em-
ployed in such commerce wholly within the limits of a state, are subject to taxa-
tion in that state, although they may have been registered or enrolled, under an
act of congress, at a port outside the limits of the state. ^^ The object of the
registry acts does not require and there is no suggestion in the statutes that ves-
sels registered or enrolled are exempt from the ordinary rules respecting taxa-
tion of personal property. It is true by § 4141 there is created what may be
called the home port of the vessel, an artificial situs, which may control the place
of taxation in the absence of an actual situs elsewhere.^*'

Ships or vessels touching foreign ports. — But ships or vessels engaged in
interstate or foreign commerce upon the high seas, or other waters which are a
common highway, and having their home port, at which they are registered un-
der the laws of the United States, at the domicile of their owners in one state,

90. Tax on agents. — LiKlitburne v. Tax- 94. Transportation Co. v. Wheeling, 99
ing Dist., 72 Tenn. (4 Lea) 219. U. S. 273, 25 L. Kd. 412.

91. Pilots.— Barnaby v. State, 21 Ind. 95- Judgment, Old Dominion Steamsliip
450. Co. V. Commonwealth, 102 Va. 570, 4(> S.

92. Tax on steamboat engineer.— People

IC. 783, 102 Am. St. Rep. 855, affirmed in

V. Prillen. 70 X. Y. S. 821? 73 App. Div. 9,'«\°°"^'"J"" ^oT'^i' ^^lr^^ X'T'T^

207, reversed in 173 N. Y. 67, 65 N. E. W^ U. S. 299, 49 L. hd. 1059, 25 S. Ct.

947 ''^''•

■„ ^ . , , , r TT • J 96. Old Dominion Steamship Co. v.

93. Registered under laws of United Virginia, 198 U. S. 299, 49 L. Ed. 1059,

States.— Transportation Co. v. Wheeling, ^j. j^ ^^ ^^^^.^ c;^^ jj^^^g ^ Pacific Mail

99 U. S. 273, 25 L. Ed. 412. Steamship Co. (U. S.), 17 How. 590, 15

L. Ed. 254.

§§ 3969-3971



are not subject to taxation in another state at whose ports they incidentally and
temporarily touch for the purpose of delivering or receiving passengers or

The distinction between a vessel in her home port and when lying at a
foreign one, or in the port of another state, is familiar in the admiralty law, and
she is subjected, in many cases, to the application of a different set of princi-

Steamboats plying- between different ports on a navigable river may,
under a state statute, be taxed as personal property by the city where the com-
pany owning them has its principal office, and which is their home port, although
they are duly enrolled and licensed as coasting vessels under the laws of the
United States, and all fees and charges thereon, demandable under those laws,
have been duly paid.-"'

§ 3970. Registered in Another State. — No state but that in which a ves-
sel has her home port has dominion over her for the purpose of taxation. ^ The
state of California has no power to tax vessels owned and registered in New
York, but which are temporarily within its jurisdiction for the purpose of dis-
charging and receiving passengers and freight.-

§ 3971. Tax on Particular Ships. — Tax on Towboats. — The New Or-
leans city ordinance imposing a license tax on every agency, person, or corpora-
tion owning or running towboats to and from the Gulf of Mexico violates the
constitution of the United States, giving congress power to regulate commerce
between the states.^ Steam tugs engaged in the business of towing vessels from

97. Ships or vessels touching foreign
ports. — Hays v. Pacific Mail Steamship
Co. (U. vS.), 17 How. 596, 15 L. Ed. 254;
St. Louis V. Ferry Co. (U. S.), 11 Wall.
423, 20 L. Ed. 192; Morgan v. Parham (U.
S.), 16 Wall. 471, 21 L. Ed. 303; Wiggins
Ferry Co. v. East St. Louis, 107 U. S.
365, 27 L. Ed. 419, 2 S. Ct. 257; Glou-
cester Ferry Co. v. Pennsylvania, 114 U.
S. 196, 29 L. Ed. 158, 5 S. Ct. 826; Pull-
man's Palace Car Co. v. Pennsylvania,
141 U. S. 18, 35 L. Ed. 613, 11 S. Ct. 876;
Louisville, etc.. Ferry Co. v. Kentucky,
188 U. S. 385, 47 L. Ed. 513, 23 S. Ct.
463; Old Dominion Steamship Co. v. Vir-
ginia, 198 U. S. 299, 49 L. Ed. 1059, 25
S. Ct. 686.

A company, incorporated by New York
(all the stockholders being residents of
that state) owned vessels which were em-
ployed in the transportation of passen-
gers, etc., between New York and San
Francisco and different ports in the terri-
tory of Oregon. The vessels were ocean
steamships duly registered in New York
and remained in California no longer than
was necessary to land their passengers
and freight, and prepare for the next voy-
age. It was held that these vessels were
not liable to assessment and taxation un-
der the laws of California and under the
authorities of San Francisco. Hays v.
Pacific Mail Steamship Co. (U. S.), 17
How. 596, 15 L. Ed. 254.

When a vessel is regularly registered in
the port to which she belongs, that is to
say, "in the port nearest to which her
owner, husband, or acting and managing
owner usually resides," the fact that she

may be temporarily in a port of a state,
other than that where her home port is,
and engaged in lawful commerce — one of
a daily line of steamers — between that
port and a port of a yet third state, does
not cause her to become incorporated into
the personal property of the state where
she is temporarily, and no state but that
in which her home port is has dominion
over her for the purpose of taxation. The
fact that the vessel was enrolled by her
master as a coaster at Mobile, Alabama,
?nd that her license as a coaster was re-
newed from year to year, does not afifect
her registry in New York or her owner-
ship there. It accordingly does not
change the rule. Morgan v. Parham (U.
S.), 16 Walk 471, 21 L. Ed. 303.

98. Hays v. Pacific Mail Steamship Co.
(U. S.), 17 How. 596, 15 L. Ed. 254; Pey-
roux V. Howard (U. S.), 7 Pet. 324, 8
L. Ed. 700; The General Smith (U. S.),
4 Wheat. 438, 4 L. Ed. 609.

99. Transportation Co. v. Wheeling, 99
U. S. 273, 25 L. Ed. 412.

1. Ship registered in another state. —
Morgan v. Parham (U. S.), 16 Wall. 471,
21 L. Ed. 303.

2. Hays v. Pacific Mail Steamship Co.
(U. S.), 17 How. 596, 15 L. Ed. 254.

3. Tax on towboats. — Moran v. New
Orleans, 112 U. S. 69, 28 L. Ed. 653, 5 S.
Ct. 38.

The ordinance of the city of New Or-
leans imposing a license tax upon the
owners of towboats running on the Mis-
sissippi River to and from the Gulf of
Mexico is not a regulation of commerce,
and it is not, therefore, in conflict with

3585 TAXATION. § 3971

the Chicago River into the harbor and lake, and in bringing vessels from the lake
into the river, are engaged in interstate and foreign commerce ; and if they
possess a license to engage in the coasting and foreign trade, under an act of con-
gress, they can not be compelled to pay any further license fee to the city of Chi-
cago, and a city ordinance requiring the same is void."* The exaction of such a
license fee can not be supported upon the ground that the city of Chicago had
from time to time expended money in deepening the Chicago River for navigation
purposes, when the ordinance does not profess to require the license fee on any
such ground, and no suggestion is made that any special benefit has arisen, or can
arise, to such tugs, by such deepening of the river.^ Vessels licensed for coast-
ing trade, as provided by the Revised Statutes of the United States and engaged
in transporting freight upon the Mississippi river from Illinois to Missouri, and
unloading the same into vessels moored at the improved wharf of the city of St.
Louis, can not be compelled to pay a license fee exacted by an ordinance of the
city of St. Louis which does not exact such fee as compensation for the use of
the city's wharf, but for the privilege "of towing boats or other water crafts into
or out of the harbor of the city, or from one place to another within said harbor,"
such ordinance being void as an interference with interstate commerce.^

Tax on Dredges. — Dredges, having no propelling power, and not designated
for use in the carrying trade, nor entitled to enrollment and registry, though em-
ployed to do work intended to aid navigation and commerce, and although they
are vessels subject to maritime liens, are not instruments of interstate or foreign
commerce, and may be subjected to taxation in a state other than that of the
residence of their owners, when kept and employed in such state without an in-
tention to remove them therefrom at any definite time; and such vessels are tax-
able under a law of the state of Washington, providing that "all boats and small
craft not required to be registered must be assessed in the county where the same
are kept.""

Tax on Oyster Boats. — An act of the state of Maryland prohibiting any per-
son from using a vessel for buying, carrying, or selling oysters over the navi-
gable waters of Chesapeake Bay, unless licensed from the state, after a previous
twelve months residence in the state, and the payment of a tonnage tax, is un-
constitutional, so far as it interferes with the right to carry on such business in
licensed and enrolled vessels of the United States, and because it requires a pay-
ment of tonnage tax without the consent of congress.^

the constitution of the United States. v. Chicago, 140 111. 374, 29 N. E. 732,

New Orleans v. Eclipse Tow-Boat Co., 33 reversing 26 N. E. 697.

La. Ann. 647, 39 Am. Rep. 279. Tugboats licensed by the United States

Act No. 150 of 1890, § 8, par. 19, impos- ^or the coasting trade, and employed in
ing a license tax on every person engaged towing vessels engaged m interstate corn-
in the l/usiness of operating towboats on merce in and out of the Chicago River,
the Mississippi River and its tributaries, are engaged in interstate commerce,
to he graduated according to the gross thougli their operations are in fact con-
annual receipts, is void because it is a ^'led largely to the corporate limits of
regulation of interstate commerce. Frere the city of Chicago. But a city ordinance
V. \'on Schoeler, 47 La. Ann. 324, 16 So. prohibiting the use of such tugboats, ex-
808, 27 L. R. A. 414. cept under license from the city, is un-

.' TT^^ „, nu:^..^^ -lAry jj c -joA constitutional, as being a toll for the use

^7 T Vr Ar ^-^ ? S^ .'or ' of the river in its condition as improved

37 L. Ld. 216, 13 S. Lt. 306. ,^y ^j^^ ^.^^ ^^ -^^ ^^^ expense. Harmon

5. Harman v. Chicago, 147 U. S. 396, ^, Chicago, 140 III. 374, 29 N. E. 732. re-

37 L. Ed. 216, 13 S. Ct. 306, reversing 140 ycrsin" ''6 N E 697
111. 374, 29 N. E. 732. 6. sl '"LouIs v. Consolidated Coal Co.,

The navigation of the Chicago River i.-js Mo. 342, 59 S. W. 103, 51 L. R. A.

having been improved by the city of Chi- S50, 81 Am. St. Rep. 310.
cago at its own expense, an ordinance 7. Dredges.— McRae v. Bowers Dredg-

prohibiting the use of tugboats engaged itig Co., 90 Eed. 360.

in interstate commerce, except under li- 8. Oyster boats. — Booth v. Lloyd, 33

cense from the city, is valid, as being the l-'vi]. :>[y.',; Kx ])artc Insley, 33 Fed. 680.
imposition of a toll for the use of the An act to enforce, in Maurice River Cove

river in its improved condition. Harmon nnd Delaware Bay, an act for the prcserva-

§§ 3971-3973



Boat Used for Exhibition Purposes. — A tax imposed by a town, under au-
thority of the state, on a pubhc exhibition given on board a steamboat, the owner
whereof has obtained a coasting hcense from the federal government, is a mere
police regulation, necessary to the order of cities and town, and not a regulation
of commerce.^

§ 3972. Wharfage Fees. — The imposing of wharfage fees by a city on a
river which is the boundary between the states is not an interference with inter-
state commerce. ^'^ A statute fixing reasonable rates of compensation to be paid
to a wharfinger for the use of his wharf by a vessel moored thereto does not
create a tax upon tonnage or an impediment to commerce. ^^ The exaction of
wharfage is not the laying of a duty of tonnage, and, where an ordinance re-
quires steamboats and other water craft to pay for the use of the wharfs, and no
demand is made for entering, loading, or lying in the harbor or port, such charges
will not be considered as a duty of tonnage but as wharfage.^- A city has no
power to compel a boat to avail itself of its wharves by landing there instead of
landing at the natural bank of the river, or to require the payment of wharfage
dues from any vessel not landing at the wharf, as an exaction of such dues for
the mere privilege of landing at the banks of a natural stream, although within
the harbor limits of the city, is a duty of tonnage within the prohibition con-
tained in the United States Constitution, art. 1, § 10.^^

§ 3973. Tax on Ferries. — The granting of ferry licenses on boundary
rivers is within the police powers of a state, provided it be not so exercised as to
interfere with general commercial transportation, as distinguished from fer-
riage.^'* A tax on the privilege of operating a ferry, where the ferry company is

lion of clams and oysters, requiring a li-
cense from all boats engaged in planting
or taking oysters there, is not an unconsti-
tutional interstate regulation. Johnson v.
Loper, 46 N. J. L. 321.

9. Where exhibition given on steamboat.
— Board v. Spalding, 8 La. Ann. 87.

10. Wharfage fees. — Keckevoet v. Du-
buque (Iowa), 138 N. W. 540.

11. The John M. Welch, Fed. Cas. No.
7,359, 9 Ben. 507, reversed in Broeck v.
The Barge John M. Welch, 2 Fed. 364.

Laws N. Y. 1897, p. 701, c. 592, § 63,
which provides that "the master, owner or
consignee of every steamboat or vessel
entering the port of Albany or loading,
unloading or making fast to any wharf
therein, ^H'all, within forty-eight hours
after the arrival thereof, pay to the har-
bor master for his services the sum of
one and one-half cents per ton per an-
num, v/hich shall be computed upon the
registered tonnage of such steamboat or
vessel," is void as imposing a tonnage
tax, in violation of article 1, § 10, of the
constitution of the United States. Way
V. New Jersey Steamboat Co., 133 Fed.

Wharfage charges imposed by the board
of harbor commissioners on the owner of
a barge and lighter, which were kept
within a slip constructed, repaired, and
dredged by the board, are valid, and not
in violation of the Constitution of the
United States, art. 1, § 10, which prohibits
a state from levying duty on tonnage
without the consent of congress. People
V. Roberts (Cal.), 25 Pac. 496.

Wharfage, or a compensation payable
by a vessel for use of a wharf, is not a
tonnage duty, although directed to be
computed in proportion to the tonnage of
vessels. Keokuk v. Keokuk Northern
Line Packet Co., 45 Iowa 196.

Act March 24, 1899 (P. L. 1899, p. 506)
§ 10, authorizing the state oyster com-
mission to fix the license tax imposed on
boats entitled to engage in oyster plant-
ing in certain tidal waters within the
state, according to the tonnage measure-
ment of the boats, does not violate the
constitution of the United States, art. 1,
§ 10, par. 3, declaring that no state shall,
without the consent of congress, levy any
duty of tonnage; the tax being imposed
on the business of oyster planting, and
not on ship as in instrument of commerce.
State V. Corson, 67 N. J. L. 178, SO.Atl.

12. Ouachita, etc.. Packet Co. v. Aiken,
16 Fed. 890.

"The constitutionality of wharfage
taxes exacted by the city of New Orleans
has been settled by this court in this dis-
trict. Leathers v. Aiken, 9 Fed. 679, and
Ouachita, etc.. Packet Co. v. Aiken, 16
Fed. 890." Silver v. Tobin, 28 Fed. 545.

13. Cape Girardeau v. Campbell, 26 Mo.
App. 12.

14. Tax on ferries. — Conway v. Taylor
(U. S.), 1 Black 603, 17 L. Ed. 191.

The owner of a ferryboat plying be-
tween the United States and Canada, on
the Detroit River, may be convicted un-
der an ordinance of the city of Detroit
forbidding the operation of ferryboats




exclusively engaged in ferrying passengers across a river from one state to an-
other, is a burden on interstate commerce, which a state may not imj^ose.^'^

Transferring Railroad Cars. — An unconstitutional burden is imposed on
interstate commerce by a law of Illinois penalizing the carrying on of a ferry
without a license, when applied to the transportation of loaded or unloaded rail-
road cars across the Mississippi river from the Illinois to the Missouri shore, even
assuming that a state may regulate a ferry upon a navigable stream forming the
boundary between two states, where such statute makes the granting of the
license discretionary, with citizens of Illinois preferred, and compels the licensee
to conduct a general ferry business. i'^ A state has no power to exact a license fee
for the operation of a ferry for the transfer of railroad cars across a navigable
river between a point within such state and a point in another state, where the
corporation owning and operating such ferry is a citizen and resident of the latter
state, and the vessels employed have their situs in such state for purposes of taxa-
tion, and the only property of the company within the state seeking to impose
the license consists of its landing place and facilities. As applied to such case,
the license fee is a direct burden upon interstate commerce. ^^

§ 3974. Tax on Bridges.— It is no defense to an action for taxes levied
upon the property of a bridge company situated exclusively in the state, and upon
the value of its franchise granted by the state, that the bridge connected two states,
and was used entirely for interstate business.!'^ A proportional state tax on the
intangible property, within the state, of a bridge company owning a bridge over a
river between adjoining states, is not a tax on interstate commerce, when the busi-

without a license, though the boat was
duly enrolled and licensed for the coast-
ing and foreign trade under the laws of
the United States. Chilvers v. People, 11
Mich. 43.

An annual license tax of a fixed sum,
imposed by a municipal corporation on
each boat of a ferry company located
within its limits, is valid exercise of the
police power, and, though the other land-
ing of the ferry is in another state, can
not be considered as a regulation of in-
terstate commerce, within the constitu-
tion, art. 1, § 8. Wiggins Ferry Co. v.
East St. Louis, 107 U. S. 365, 27 L. Ed.
419, 2 S. Ct. 257.

An ordinance requiring keepers of fer-
ries to pay a license fee, enacted in pur-
suance of a power conferred upon the
city by the legislature to "license, tax and
regulate ferries," is not in restraint of
interstate commerce. Wiggins Ferry Co.
V. East St. Louis, 102 111. 560.

The fact that a Kentucky ferry com-
pany, domiciled in Kentucky, is engaged
in interstate commerce, does not deprive
the state of Kentucky of the right to tax
its franchise; and its income may be con-
sidered in fixing the value of that fran-
chise. Louisville, etc., l'*erry Co. v. Com-
monwealth, 57 S. W. 621, 22 Kv. L. Rep.
446, 108 Ky. 717; S. C, 57 S. W. 626. 22
Ky. L. Rep. 480, 24 Ky. L. Rep. 1330.
Reversed in Louisville, etc., Ferry Co. v.
Kentucky, 23 S. Ct. 463, 188 U. S. 385,
47 L. Ed. 513.

Tax on capital stock. — .\ ferry comi)any
■engaged in transporting freight and pas-
sengers across the Delaware River from

4 Car— 31

P., in Pennsylvania, to G., N. J., was in-
corporated under the laws of the latter
state, and had all its boats registered
there. It had no property in Pennsylva-
nia, other than the lease of a wharf, and
did no other business there than the land-
ing and receiving of freight and passen-
gers at said wharf. Held, that a tax im-
posed by Pennsylvania upon the capital
stock of said company was void, as an
interference witli interstate commerce.
Gloucester Ferry Co. v. Pennsylvania, 114
U. S. 196, 29 L. Ed. 158, 5 S. Ct. 836.

15. Helena-Glendale Steam Ferry Co.
V. State, 101 Miss. 65, 57 So. 362.

16. Transferring railroad cars. — Judg-
ment, St. Clair County v. Interstate Car-
Transfer Co., 109 Fed. 741, affirmed in
24 S. Ct. 300, 192 U. S. 454, 48 L- Ed. 518.

17. St. Clair County v. Interstate Car-
Transfer Co., 109 Fed. 741, affirmed in
24 S. Ct. 300, 192 U. S. 454, 48 L. Ed. 518.

18. Tax on bridges. — Henderson Bridge
Co. V. Commonwealth. 99 Ky. 623, 17 Ky.
L. Rep. 389, 31 S. W. 486.

The city of Henderson, Ky., whose cor-
porate limits extend to low water on the
Indiana shore of the Ohio River, by an
ordinance granted to a Kentucky liridge
company the right to build a railroad
bridge within its boundaries, and made
certain stipulations as to taxation thereof.
Held, that the taxation of the I^ridge was
not a regulation of interstate commerce,
or the taxation of an agency of the fed-
oral government. Henderson Bridge Co.
V. Henderson, 141 U. S. 679, 35 L. VA.
900, 12 S. Ct. 114.

§§ 3974-3975 carrii^rs. 3588

ness of transportation is not carried on by the bridge company, but by persons and
corporations who pay tolls to the bridge company. The fact that the tax may
tend to increase the tolls is too remote and incidental to make it a tax on the busi-
ness transacted.^'-* The fact that a bridge across a navigable stream between two
states is an instrument of interstate commerce does not exempt so much of it as
is within one of the states from taxation by such state.-'*

Toll Bridge. — That a toll bridge is part of a structure which carries trains
engaged in interstate commerce does not prevent its taxation. ^^

Tax on Receipts from Interstate Commerce. — A proportional state tax,
levied under a statute of Kentucky, on the intangible property within the state of
a bridge company owning a bridge over a river between the state and another
state, is not a tax on interstate commerce, though the bridge is used for interstate
commerce by street cars and other vehicles, and though, in arriving at the value,
the income is considered, and the income is derived in whole or in part from
interstate commerce. -

Tax on Capital Stock. — Interstate commerce is not taxed by taxing the cap-
ital stock of a bridge company which owns an interstate bridge but does not trans-
act any interstate business over it.^^

§ 3975. Tax on Automobiles. — A state may lawfully charge an annual tax
for registering an automobile, imposed as a charge for the use of its highways and
to raise revenue to defray their cost and repair. Such tax is without discrimina-
tion against nonresidents, and, while applying to persons engaged in interstate
commerce, is not unconstitutional as contravening the commerce clause of the
constitution of the United States. - ' A state may do this because, having ex-
pended moneys, either itself or by the agencies created by it, in increasing the fa-
cility with which commerce, either interstate or intrastate, may be carried on,

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 92 of 214)