that, taken in this restricted sense, the constitutional provision would not fully accomplish its intent.

*

It

was not only a pro rata tax which was prohibited, but any duty on the ship, whether a fixed sum upon its whole tonor a sum to be ascertained by comparing the amount of tonnage with the rate of duty."

nage,

"1

In the State Tonnage Tax Cases from Alabama,2 a tax levied by Alabama on all steamboats, vessels and other craft plying in the navigable waters of the State, at the rate of one dollar per ton of the registered tonnage, was held to be a tax upon tonnage, and the language of the act showed clearly that it was intended to be a tax on the boats as instruments of commerce and not as property in the State. The court said that it was immaterial whether the ships or vessels taxed belonged to citizens of that State or to citizens of other States, as the prohibition was general, withdrawing altogether from the State the power to lay any duties on tonnage, under any circumstances, without the consent of Congress.

An ordinance of the city of New Orleans levying duties at the rate of ten cents per ton on all steamboats mooring or landing at the port, if in port not exceeding five days, and of five dollars per day after the five days, though the port of New Orleans includes some twenty-two miles on which wharves had been built for only about two miles, was a tax upon tonnage in violation of the Constitution.3 The court said that it could not be supported as a compensation for the use of the city's wharves and was really a tax for the privilege of arriving and departing from the port. A fee of one and one-half cents per ton, required by the New York statute to be paid by all ships or vessels

entering the ports of New York and loading or unloading therein, was held to be a tax upon tonnage.1

So also was an act of Texas invalid, which required every vessel arriving at quarantine stations in the State to pay five dollars for the first one hundred tons and one and one-half cents for each additional ton. As this was for defraying the expenses of the quarantine regulations, it was claimed to be justified by the decision in Gibbons v. Ogden, where the court speaks of quarantine and inspection laws as being within the jurisdiction justly exercised by the States themselves in the regulation of commerce. The Supreme Court said 2 that, while the power to establish quarantine laws rests with the States, it cannot be exercised in violation of the restrictions imposed by the Federal Constitution upon their taxing power, and the tax was adjudged invalid as being upon tonnage. An example of a valid quarantine regulation, involving the payment of a fee graduated according to tonnage, may be found in Morgan's Steamship Co. v. Board of Health."

§ 200. Property taxation and compensation for services distinguished from tonnage.

A property tax lawfully levied upon the vessel as property, where it has a taxable situs, is not a duty upon tonnage. Thus in Transportation Co. v. Wheeling, the boats used in navigating the Ohio river between Wheeling and Parkersburg, and, when not in use, laid up at Wheeling, owned by a West Virginia company, whose principal office was at Wheeling and whose stock belonged principally to citizens of West Virginia and Ohio, were held properly taxable at Wheeling. A tax so levied moreover was not a

1 Inman Steamship Co. v. Tinker, 94 U. S. 238.

Peete v. Morgan, 19 Wallace 581.

8 118 U. S. 455.

4 99 U. S. 273.

tax upon tonnage. The court said that taxes levied by the State upon vessels owned by its citizens as property, based on the value of the same as property, are not within the prohibition of the Constitution, and that assessments of this kind, when levied for municipal purposes, must be made against the owner of the property and can only be made in the municipality where the owner resides.

On the other hand it is not a duty upon tonnage where the charge imposed is only a reasonable charge for services rendered, as for the use of an improved wharf in a municipality, even if the charge is proportioned to the tonnage of the vessel. Such charges have been sustained in a number of cases.1

Thus, in the case of Transportation Company v. Parkersburg, the exaction of the fee was sustained, although plaintiff claimed that the rates charged were exorbitant and were merely a pretext for a duty on tonnage. But the court refused to inquire into the secret purpose of the city. Upon the distinction between a duty on tonnage and wharfage charges it said:

§ 201. Supreme Court on tonnage duties and wharfage charges.

"When the Constitution declares that No State shall, without the consent of Congress, lay any duty of tonnage; and when Congress, in sect. 4220 of the Revised Statutes, declares that no vessel belonging to any citizen of the United States, trading from one port within the United States to another port within the United States, or employed in the bank, whale or other fisheries, shall be subject to tonnage tax or duty, if such vessel be licensed,

1 Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 100 U. S. 423; Vicksburg v. Tobin, 100 U. S. 430; Packet Co. v. Catlettsburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 691.

6

registered, or enrolled,' they mean by the phrases, duty of tonnage,' and tonnage tax or duty,' a charge, tax, or duty on a vessel for the privilege of entering a port; and although usually levied according to tonnage, and so acquiring its name, it is not confined to that method of rating the charge. It has nothing to do with wharfage, which is a charge against a vessel for using or lying at a wharf or landing. The one is imposed by the government, the other by the owner of the wharf or landing. The one is a commercial regulation, dictated by the general policy of the country upon considerations having reference to its commerce, or revenue; the other is a rent charged by the owner of the property for its temporary use. It is obvious that the mode of rating the charge in either case, whether according to the size or capacity of the vessel, or otherwise, has nothing to do with its essential nature. It is also obvious that since a wharf is property, and wharfage is a charge or rent for its temporary use, the question whether the owner derives more or less revenue from it, or whether more or less than the cost of building and maintaining it, or what disposition he makes of such revenue, can in no way concern those who make use of the wharf and are required to pay the regular charges therefor; provided, always, that the charges are reasonable and not exorbitant."1

$202. Wharfage charges may be graduated by tonnage.

Charges for wharfage may be graduated by the tonnage of vessels using the wharves, and this is not a duty on ton

1 The opinion contains an exhaustive review of the cases, but holds that the reasonableness of the charge for wharfage must be determined by the laws of the State within whose jurisdiction the wharf is situated. Justice Harlau dissented, holding that the courts of the Union are empowered to protect the rights of free commerce against uureasonable exactions.

An ordinance of New Orleans therefore fixing the nage. rates at so much per ton for using the new wharf, the proceeds being used to repair that wharf and construct new ones, was valid. The tolls levied by the State of Illinois upon the passage of vessels through the locks of the Illinois river, as compensation for the outlay of the State in improving the navigation of the river, were held to be valid on the same principle, as the State was allowed to charge compensation for the use of wharves and docks, and there was nothing in the objection that the rates of toll were according to tonnage and the amount of freight.2

§ 203. But wharfage and similar charges must be without discrimination.

But the right of the State, or municipality acting under State authority, to make reasonable charges for the use of improved wharves and similar privileges is subject to the qualification incident to the exercise of its taxing authority by a State in any case, that it must be without discrimination against the citizens and products of other States. This was forcibly illustrated in the case of Guy v. Baltimore, 3 where a city wharfage charge had been in force some fifty years and was declared invalid as interfering with commerce, on the ground that it was exacted only from vessels transporting goods or articles other than the products of the State. It was argued that the city, as the owner of the wharves, had the right to permit their free use by vessels loaded with the products of Maryland, and that others could not complain so long as they were not required to pay more than a reasonable compensation. The

1 Ouachita Packet Co. v. Aiken, 121 U. S. 444.

2 Huse v. Glover, 119 U. S. 543; see also Escanaba Co. v. Chicago, 107 U. S. 678; Sands v. Manistee Improvement Co., 123 U. S. 288. 3 100 U. S. 434.