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Ex Parte Clarke/Dissent Field

MR. JUSTICE FIELD, with whom concurred MR. JUSTICE CLIFFORD, dissenting.

I cannot assent to the decision of the majority of the court in this and the preceding case, and I will state the reasons of my dissent. One of the six petitioners is a citizen of Ohio, and the other five are citizens of Maryland. They all seek a discharge from imprisonment imposed by judgments of Federal courts for alleged official misconduct as judges of election in their respective States.

At an election held in the first congressional district of Ohio, in October, 1878, at which a representative in Congress was voted for, the petitioner from that State was appointed under its laws, and acted as a judge of election at a precinct in one of the wards of the city of Cincinnati. At an election held in the fourth and fifth congressional districts of Maryland, in November, 1878, at which a representative in Congress was voted for, the petitioners from that State were appointed under its laws, and acted as judges of election at different precincts in the wards of the city of Baltimore. For alleged misconduct as such officers of election the petitioners were indicted in the Circuit Courts of the United States for their respective districts, tried, convicted, and sentenced to imprisonment for twelve months, and, in some of the cases, also to pay a fine.

In what I have to say I shall confine myself principally to the case of the petitioner from Ohio; the other cases will be incidentally considered. In that case, the petitioner is charged with having violated a law of the State. In the cases from Maryland, the petitioners are charged with having prevented Federal officers from interfering with them and supervising their action in the execution of the laws of the State. The principle which governs one will dispose of all of them; for if Congress cannot punish an officer of a State for the manner in which he discharges his duties under her laws, it cannot subject him to the supervision and control of others in the performance of such duties, and punish him for resisting their interference. In the cases from Maryland, it appears that the laws of the State under which the petitioners were appointed judges of election, and the registration of voters for the election of 1878 was made, were not in existence when the act of Congress was passed providing for the appointment of supervisors to examine the registration and scrutinize the lists, and of special deputy marshals to aid and protect them. The act of Congress was passed in 1871, and republished in the Revised Statutes, which are declaratory of the law in force, Dec. 1, 1873. The law of Maryland, under which the registration of voters was had, was enacted in 1874, and the law under which the judges of election were appointed was enacted in 1876, and these judges were required to possess different qualifications from those required of judges of election in 1871 and 1873.

In all the cases the petitioners are imprisoned under the judgments against them; and each one insisting that the Circuit Court, in his case, acted without jurisdiction, and that his imprisonment is, therefore, unlawful and subversive of his rights as a citizen, has petitioned this court for a writ of habeas corpus, annexing to his petition a transcript of the record of the proceedings against him; and prays that he may be released from restraint.

It has been settled by this court that the writ of habeas corpus is one of the modes by which its appellate jurisdiction will be exercised in cases where it is alleged that by the action of an inferior tribunal a citizen of the United States has been unlawfully deprived of his personal liberty; and, if necessary, that a certiorari will be issued with the writ to bring up for examination the record of the proceedings of the inferior tribunal. In such cases, we look into that record to see, not whether the court erred in its rulings, but whether it had jurisdiction to impose the imprisonment complained of. If it had jurisdiction, our examination ends, and the case must await determination in the ordinary course of procedure on writ of error or appeal, should the case be one which can thus be brought under our review. But if the court below was without jurisdiction of the matter upon which the judgment of imprisonment was rendered, or if it exceeded its jurisdiction in the extent of the imprisonment imposed, this court will interfere and discharge the petitioner. If, therefore, the act of Congress, in seeking to impose a punishment upon a State officer in one of these cases for disobeying a law of the State, and in the other cases for resisting the interference of Federal officials with the discharge of his duties under such law, is unconstitutional and void, the judgments of the circuit courts are unlawful and the petitioners should be released.

I do not regard the presentation by the petitioner from Ohio of his petition to one of the justices of the court in the first instance as a fact at all affecting his case. His petition is addressed to this court, and though the justice, who allowed the writ, directed that it should be returnable before himself, he afterwards ordered the hearing upon it to be had before this court. The petition may, therefore, with propriety be treated as if presented to us in the first instance. Irregularities in that regard should not be allowed to defeat its purpose, the writ being designed for the security of the personal liberty of the citizen.

The act of Congress upon which the indictment of the petitioner from Ohio was founded is contained in sect. 5515 of the Revised Statutes, which declares that 'every officer of an election, at which any representative or delegate in Congress is voted for, whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any State, territorial, district, or municipal law or authority, who neglects or refuses to perform any duty in regard to such election required of him by any law of the United States, or of any State or Territory thereof; or who violates any duty so imposed; or who knowingly does any acts thereby unauthorized with intent to affect any such election or the result thereof,. . . shall be punished as prescribed' in a previous section, that is, by a fine not exceeding $1,000, or imprisonment not more than one year, or by both.

The indictment contains three counts, the third of which was abandoned. The first count charges unlawful neglect on the part of the accused to perform a duty required of him by the laws of the State, in not carrying to the clerk of the Court of Common Pleas one of the poll-books of the election, covered and sealed by the judges of election, with which he was intrusted by them for that purpose. The second count charges the violation of a duty required of him by the laws of the State in permitting one of the poll-books, covered and sealed, intrusted to him by the judges of election to carry to the clerk of the Court of Common Pleas, to be broken open before he conveyed it to that officer.

The law of Ohio, to which reference is had in the indictment, provides that after the votes at an election are canvassed 'the judges, before they disperse, shall put under cover one of the poll-books, seal the same, and direct it to the clerk of the Court of Common Pleas of the county wherein the return is to be made; and the poll-book thus sealed and directed, shall be conveyed by one of the judges (to be determined by lot if they cannot agree otherwise), to the clerk of the Court of Common Pleas of the county, at his office, within two days from the day of the election.'

The provisions of the act of Congress relating to the appointment of supervisors of election, the powers with which they are intrusted, and the aid to be rendered them by marshals and special deputy marshals, for resisting and interfering with whom the petitioners from Maryland have been condemned and are imprisoned, are stated in the opinion of the court. It is sufficient to observe that they authorize the supervisors to supervise the action of the State officers from the registration of voters down to the close of the polls on the day of election; require the marshals to aid and protect them, and provide for the appointment of special deputy marshals in towns and cities of over twenty thousand inhabitants; and they invest those Federal officers with a power to arrest and take into custody persons without process more extended than has ever before in our country in time of peace been intrusted to any one.

In what I have to say I shall endeavor to show; 1st, that it is not competent for Congress to punish a State officer for the manner in which he discharges duties imposed upon him by the laws of the State, or to subject him in the performance of such duties to the supervision and control of others, and punish him for resisting their interference; and, 2d, that it is not competent for Congress to make the exercise of its punitive power dependent upon the legislation of the States.

There is no doubt that Congress may adopt a law of a State, but in that case the adopted law must be enforced as a law of the United States. Here there is no pretence of such adoption. In the case from Ohio it is for the violation of a State law, not a law of the United States, that the indictment was found. The judicial power of the United States does not extend to a case of that kind. The Constitution defines and limits that power. It declares that it shall extend to cases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority; to cases affecting ambassadors, other public ministers and consuls; to cases of admiralty and maritime jurisdiction, and to various controversies to which the United States or a State is a party, or between citizens of different States, or citizens of the same State claiming lands under grants of different States, or between citizens of a State and any foreign State, citizens or subjects. The term 'controversies' as here used refers to such only as are of a civil as distinguished from those of a criminal nature. The judicial power thus defined may be applied to new cases as they arise under the Constitution and laws of the United States, but it cannot be enlarged by Congress so as to embrace cases not enumerated in the Constitution. It has been so held by this court from the earliest period. It was so adjudged in 1803 in Marbury v. Madison, and the adjudication has been affirmed in numerous instances since. This limitation upon Congress would seem to be conclusive of the case from Ohio. To authorize a criminal prosecution in the Federal courts for an offence against a law of a State is to extend the judicial power of the United States to a case not arising under the Constitution or laws of the United States.

But there is another view of this subject which is equally conclusive against the jurisdiction of the Federal court. The act of Congress asserts a power inconsistent with, and destructive of, the independence of the States. The right to control their own officers, to prescribe the duties they shall perform, without the supervision or interference of any other authority, and the penalties to which they shall be subjected for a violation of duty is essential to that independence. If the Federal government can punish a violation of the laws of the State, it may punish obedience to them, and graduate the punishment according to its own judgment of their propriety and wisdom. It may thus exercise a control over the legislation of the States subversive of all their reserved rights. However large the powers conferred upon the government formed by the Constitution, and however numerous its restraints, the right to enforce their own laws by such sanctions as they may deem appropriate is left, where it was originally, with the States. It is a right which has never been surrendered. Indeed a State could not be considered as independent in any matter, with respect to which its officers, in the discharge of their duties, could be subjected to punishment by any external authority; nor in which its officers, in the execution of its laws, could be subject to the supervision and interference of others.

The invalidity of coercive measures by the United States, to compel an officer of a State to perform a duty imposed upon him by a law of Congress, is asserted in explicit terms in the case of The Commonwealth of Kentucky v. Dennison, 24 How. 66. The Constitution declares that 'a person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime.' And the act of Congress of 1793, to give effect to this clause, made it the duty of the executive authority of the State, upon the demand mentioned, and the production of a properly authenticated copy of the indictment or affidavit charging the person demanded with the commission of treason, felony, or other crime, to surrender the fugitive. The Governor of Ohio having refused upon a proper demand to surrender a fugitive from justice from Kentucky, the Governor of the latter State applied to this court for a mandamus to compel the performance of that duty. But the court, after observing that, though the words, 'it shall be the duty,' in ordinary legislation implied the assertion of the power to command and to cause obedience, said, that looking to the subjectmatter of the law and 'the relations which the United States and the several States bear to each other,' it was of opinion that the words were not used as mandatory and compulsory, but as declaratory of the moral duty created, when Congress had provided the mode of carrying the provision into execution. 'The act does not provide,' the court added, 'any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the executive of the State; nor is there any clause or provision in the Constitution which arms the government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the general government, even in the administration of its internal concerns and reserved rights. And we think it clear that the Federal government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possessed that power it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the State and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State. It is true that Congress may authorize a particular State officer to perform a particular duty; but if he declines to do so, it does not follow that he may be coerced or punished for his refusal. And we are very far from supposing that in using this word 'duty,' the statesmen who framed and passed the law, or the President who approved and signed it, intended to exercise a coercive power over State officers not warranted by the Constitution.' And again: 'If the Governor of Ohio refuses to discharge this duty, there is no power delegated to the general government, either through the judicial department or any other department, to use any coercive means to compel him.'If it be incompetent for the Federal government to enforce by coercive measures the performance of a plain duty, imposed by a law of Congress upon the executive officer of a State, it would seem to be equally incompetent for it to enforce by similar measures the performance of a duty imposed upon him by a law of a State. If Congress cannot impose upon a State officer, as such, the performance of any duty, it would seem logically to follow that it cannot subject him to punishment for the neglect of such duties as the State may impose. It cannot punish for the non-performance of a duty which it cannot prescribe. It is a contradiction in terms to say that it can inflict punishment for disobedience to an act the performance of which it has no constitutional power to command.

I am not aware that the doctrine of this case, which is so essential to the harmonious working of the State and Federal governments, has ever been qualified or departed from by this court, until the recent decisions in the Virginia cases, of which I shall presently speak. It is true that, at an early period in the history of the government, laws were passed by Congress, authorizing State courts to entertain jurisdiction of proceedings by the United States, to enforce penalties and forfeitures under the revenue laws, and to hear allegations, and take proofs, if application were made for their remission. To these laws reference is made in the Kentucky case; and the court observes that the powers which they conferred was for some years exercised by the State tribunals, without objection, until, in some of the States, their exercise was declined, because it interfered with and retarded the performance of duties which properly belonged to them as State courts, and in other States because doubts arose as to the power of State courts to inflict penalties and forfeitures for offences against the general government, unless specially authorized to do so by the States; and that the co-operation of the States in those cases was a matter of comity which the several sovereignties extended to one another for their mutual benefit, and was not regarded by either party as an obligation imposed by the Constitution.

It is to be observed that, by the Constitution, the demand for the surrender of a fugitive is to be made by the executive authority of the State from which he has fled; but it is not declared upon whom the demand shall be made. That was left to be determined by Congress; and it provided that the demand should be made upon the executive of the State where the fugitive was found. It might have employed its own agents, as in the enforcement of the fugitive-slave law, and compelled them to act. But, in both cases, if it employed the officers of the State, it could not restrain nor coerce them.

Whenever, therefore, the Federal government, instead of acting through its own officers, seeks to accomplish its purposes through the agency of officers of the States, it must accept the agency with the conditions upon which the officers are permitted to act. For example, the Constitution invests Congress with the 'power to establish a uniform rule of naturalization;' and this power, from its nature, is exclusive. A concurrent power in the States would prevent the uniformity of regulations required on the subject. Chirac v. Chirac, 2 Wheat. 259; The Federalist, No. 42. Yet Congress, in legislating under this power, has authorized courts of record of the States to receive declarations under oath by aliens of their intention to become citizens, and to admit them to citizenship, after a limited period of residence, upon satisfactory proof as to character and attachment to the Constitution. But, when Congress prescribed the conditions and proof upon which aliens might, by the action of the State courts, become citizens, its power ended. It could not coerce the State courts to hold sessions for such applications, nor fix the time when they should hear the applicants, nor the manner in which they should administer the required oaths, nor regulate in any way their procedure. It could not compel them to act by mandamus from its own tribunals, nor subject their judges to criminal prosecution for their non-action. It could accept the agency of those courts only upon such terms as the States should prescribe. The same thing is true in all cases where the agency of State officers is used; and this doctrine applies with special force to judges of elections, at which numerous State officers are chosen at the same time with representatives to Congress. So far as the election of State officers and the registration of voters for their election are concerned, the Federal government has confessedly no authority to interfere. And yet the supervision of and interference with the State regulations, sanctioned by the act of Congress, when representatives to Congress are voted for, amount practically to a supervision of and an interference with the election of State officers, and constitute a plain encroachment upon the rights of the States, which is well calculated to create irritation towards the Federal government, and disturb the harmony that all good and patriotic men should desire to exist between it and the State governments.

It was the purpose of the framers of the Constitution to create a government which could enforce its own laws, through its own officers and tribunals, without reliance upon those of the States, and thus avoid the principal defect of the government of the confederation, and they fully accomplished their purpose; for, as said by Chief Justice Marshall, in the McCullough Case, 'No trace is to be found in the Constitution of an intention to create a dependence of the Federal government on the governments of the States for the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends.' When, therefore, the Federal government desires to compel by coercive measures and punitive sanctions the performance of any duties devolved upon it by the Constitution, it must appoint its own officers and agents, upon whom its power can be exerted. If it sees fit to intrust the performance of such duties to officers of a State, it must take their agency, as already stated, upon the conditions which the State may impose. The co-operative scheme to which the majority of the court give their sanction, by which the general government may create one condition and the States another, and each make up for and supplement the omissions or defects in the legislation of the other, touching the same subject, with its separate penalties for the same offence, and thus produce a harmonious mosaic of statutory regulation, does not appear to have struck the great jurist as a feature in our system of government or one that had been sanctioned by its founders.

It is true that, since the recent amendments of the Constitution, there has been legislation by Congress asserting, as in the instance before us, a direct control over State officers, which previously was never supposed to be compatible with the independent existence of the States in their reserved powers. Much of that legislation has yet to be brought to the test of judicial examination; and, until the recent decisions in the Virginia cases, I could not have believed that the former carefully considered and repeated judgments of this court upon provisions of the Constitution, and upon the general character and purposes of that instrument, would have been disregarded and overruled. These decisions do indeed, in my judgment, constitute a new departure. They give to the Federal government the power to strip the States of the right to vindicate their authority in their own courts against a violator of their laws, when the transgressor happens to be an officer of the United States, or alleges that he is denied or cannot enforce some right under their laws. And they assert for the Federal government a power to subject a judicial officer of a State to punishment for the manner in which he discharges his duties under her laws. The power to punish at all existing, the nature and extent of the punishment must depend upon the will of Congress, and may be carried to a removal from office. In my judgment,-and I say it without intending any disrespect to my associates,-no such advance has ever before been made toward the conversion of our Federal system into a consolidated and centralized government. I cannot think that those who framed and advocated, and the States which adopted the amendments, contemplated any such fundamental change in our theory of government as those decisions indicate. Prohibitions against legislation on particular subjects previously existed,-as, for instance, against passing a bill of attainder and an ex post facto law, or a law impairing the obligation of contracts; and, in enforcing those prohibitions, it was never supposed that criminal prosecutions could be authorized against members of the State legislature for passing the prohibited laws, or against members of the State judiciary for sustaining them, or against executive officers for enforcing the judicial determinations. Enactments prescribing such prosecutions would have given a fatal blow to the independence and autonomy of the States. So, of all or nearly all the prohibitions of the recent amendments, the same doctrine may be asserted. In few instances could legislation by Congress be deemed appropriate for their enforcement, which should provide for the annulment of prohibited laws in any other way than through the instrumentality of an appeal to the judiciary, when they impinged upon the rights of parties. If in any instance there could be such legislation authorizing a criminal prosecution for disregarding a prohibition, that legislation should define the offence and declare the punishment, and not invade the independent action of the different departments of the State governments within their appropriate spheres. Legislation by Congress can neither be necessary nor appropriate which would subject to criminal prosecution State officers for the performance of duties prescribed by State laws, not having for their object the forcible subversion of the government.

The clause of the Constitution, upon which reliance was placed by counsel, on the argument, for the legislation in question, does not, as it seems to me, give the slightest support to it. That clause declares that 'the times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators.' The power of Congress thus conferred is either to alter the regulations prescribed by the State or to make new ones; the alteration or new creation embracing every particular of time, place, and manner, except the place of choosing senators. But in neither mode nor in any respect has Congress interfered with the regulations prescribed by the legislature of Ohio, or with those prescribed by the legislature of Maryland. It has not altered them, nor made new ones. It has simply provided for the appointment of officers to supervise the execution of the State laws, and of marshals to aid and protect them in such supervision, and has added a new penalty for disobeying those laws. This is not enforcing an altered or a new regulation. Whatever Congress may properly do touching the regulations, one of two things must follow; either the altered or the new regulation remains a State law, or it becomes a law of Congress. If it remain a State law, it must, like other laws of the State, be enforced, through its instrumentalities and agencies, and with the penalties which it may see fit to prescribe, and without the supervision or interference of Federal officials. If, on the other hand, it become a law of Congress, it must be carried into execution by such officers and with such sanctions as Congress may designate. But as Congress has not altered the regulations for the election of representatives prescribed by the legislature of Ohio or of Maryland, either as to time, place, or manner, nor adopted any regulations of its own, there is nothing for the Federal government to enforce on the subject. The general authority of Congress to pass all laws necessary to carry into execution its granted powers, supposes some attempt to exercise those powers. There must, therefore, be some regulations made by Congress, either by altering those prescribed by the State, or by adopting entirely new ones, as to the times, places, and manner of holding elections for representatives, before any incidental powers can be invoked to compel obedience to them. In other words, the implied power cannot be invoked until some exercise of the express power is attempted, and then only to aid its execution. There is no express power in Congress to enforce State laws by imposing penalties for disobedience to them; its punitive power is only implied as a necessary or proper means of enforcing its own laws; nor is there any power delegated to it to supervise the execution by State officers of State laws.

If this view be correct, there is no power in Congress, independently of all other considerations, to authorize the appointment of supervisors and other officers to superintend and interfere with the election of representatives under the laws of Ohio and Maryland, or to annex a penalty to the violation of those laws, and the action of the circuit courts was without jurisdiction and void. The act of Congress in question was passed, as it seems to me, in disregard of the object of the constitutional provision. That was designed simply to give to the general government the means of its own preservation against a possible dissolution from the hostility of the States to the election of representatives, or from their neglect to provide suitable means for holding such elections. This is evident from the language of its advocates, some of them members of the convention, when the Constitution was presented to the country for adoption. In commenting upon it in his report of the debates, Mr. Madison said that it was meant 'to give the national legislature a power not only to alter the provisions of the States, but to make regulations, in case the States should fail or refuse altogether.' Elliott's Debates, 402. And in the Virginia convention called to consider the Constitution, he observed that 'it was found impossible to fix the time, place, and manner of the election of representatives in the Constitution. It was found necessary to leave the regulation of these, in the first place, to the State governments, as being best acquainted with the situation of the people, subject to the control of the general government, in order to enable it to produce uniformity and prevent its own dissolution.' 3 id. 367. And in the Federalist, Hamilton said, that the propriety of the clause in question rested 'upon the evidence of the plain proposition that every government should contain in itself the means of its own preservation.'

Similar language is found in the debates in conventions of the other States and in the writings of jurists and statesmen of the period. The conduct of Rhode Island was referred to as illustrative of the evils to be avoided. That State was not represented by delegates in Congress for years, owing to the character and views of the prevailing party; and Congress was often embarrassed by their absence. The same evil, it was urged, might result from a similar cause, and Congress should, therefore, possess the power to give the people an opportunity of electing representatives if the States should neglect or refuse to make the necessary regulations.

In the conventions of several States which ratified the Constitution an amendment was proposed to limit in express terms the action of Congress to cases of neglect or refusal of a State to make proper provisions for congressional elections, and was supported by a majority of the thirteen States; but it was finally abandoned upon the ground of the great improbability of congressional interference so long as the States performed their duty. When Congress does interfere and provide regulations, the duty of rendering them effectual, so far as they may require affirmative action, will devolve solely upon the Federal government. It will then be Federal power which is to be exercised, and its enforcement, if promoted by punitive sanctions, must be through Federal officers and agents; for, as said by Mr. Justice Story in Prigg v. Pennsylvania, 'The national government, in the absence of all positive provisions to the contrary, is bound, through its own proper department, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution.' If State officers and State agents are employed, they must be taken, as already said, with the conditions upon which the States may permit them to act, and without responsibility to the Federal authorities. The power vested in Congress is to alter the regulations prescribed by the legislatures of the States, or to make new ones, as to the times, places, and manner of holding the elections. Those which relate to the times and places will seldom require any affirmative action beyond their designation. And regulations as to the manner of holding them cannot extend beyond the designation of the mode in which the will of the voters shall be expressed and ascertained. The power does not authorize Congress to determine who shall participate in the election, or what shall be the qualification of voters. These are matters not pertaining to or involved in the manner of holding the election, and their regulation rests exclusively with the States. The only restriction upon them with respect to these matters is found in the provision that the electors of representatives in Congress shall have the qualifications required for electors of the most numerous branch of the State legislature, and the provision relating to the suffrage of the colored race. And whatever regulations Congress may prescribe as to the manner of holding the election for representatives must be so framed as to leave the election of State officers free, otherwise they cannot be maintained. In one of the numbers of the Federalist, Mr. Hamilton, in defending the adoption of the clause in the Constitution, uses this language: 'Suppose an article had been introduced into the Constitution empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments? The violation of principle in this case would have required no comment.' By the act of Congress sustained by the court, an interference with State elections is authorized almost as destructive of their control by the States as the direct regulation which he thought no man would hesitate to condemn.

The views expressed derive further support from the fact that the constitutional provision applies equally to the election of senators, except as to the place of choosing them, as it does to the election of representatives. It will not be pretended that Congress could authorize the appointment of supervisors to examine the roll of members of State legislatures and pass upon the validity of their titles, or to scrutinize the balloting for senators; or could delegate to special deputy marshals the power to arrest any member resisting and repelling the interference of the supervisors. But if Congress can authorize such officers to interfere with the judges of election appointed under State laws in the discharge of their duties when representatives are voted for, it can authorize such officers to interfere with members of the State legislatures when senators are voted for. The language of the Constitution conferring power upon Congress to alter the regulations of the States, or to make new regulations on the subject, is as applicable in the one case as in the other. The objection to such legislation in both cases is that State officers are not responsible to the Federal government for the manner in which they perform their duties, nor subject to its control. Penal sanctions and coercive measures by Federal law cannot be enforced against them. Whenever, as in some instances is the case, a State officer is required by the Constitution to perform a duty, the manner of which may be prescribed by Congress, as in the election of senators by members of State legislatures, those officers are responsible only to their States for their official conduct. The Federal government cannot touch them. There are remedies for their disregard of its regulations, which can be applied without interfering with their official character as State officers. Thus if its regulations for the election of senators should not be followed, the election had in disregard of them might be invalidated; but no one, however extreme in his views, would contend that in such a case the members of the legislature could be subjected to criminal prosecution for their action. With respect to the election of representatives, so long as Congress does not adopt regulations of its own and enforce them through Federal officers, but permits the regulations of the States to remain, it must depend for a compliance with them upon the fidelity of the State officers and their responsibility to their own government. All the provisions of the law, therefore, authorizing supervisors and marshals to interfere with those officers in the discharge of their duties, and providing for criminal prosecutions against them in the Federal courts, are, in my judgment, clearly in conflict with the Constitution. The law was adopted, no doubt, with the object of preventing frauds at elections for members of Congress, but it does not seem to have occurred to its authors that the States are as much interested as the general government in guarding against frauds at those elections and in maintaining their purity, and, if possible, more so, as their principal officers are elected at the same time. If fraud be successfully perpetrated in any case, they will be the first and the greatest sufferers. They are invested with the sole power to regulate domestic affairs of the highest moment to the prosperity and happiness of their people, affecting the acquisition, enjoyment, transfer, and descent of property; the marriage relation, and the education of children; and if such momentous and vital concerns may be wisely and safely intrusted to them, I do not think that any apprehension need be felt if the supervision of all elections in their respective States should also be left to them.

Much has been said in argument of the power of the general government to enforce its own laws, and in so doing to preserve the peace, though it is not very apparent what pertinency the observations have to the questions involved in the cases before us. No one will deny that in the powers granted to it the general government is supreme, and that, upon all subjects within their scope, it can make its authority respected and obeyed throughout the limits of the Republic; and that it can repress all disorders and disturbance which interfere with the enforcement of its laws. But I am unable to perceive in this fact, which all sensible men acknowledge, any cause for the exercise of ungranted power. The greater its lawful power, the greater the reason for not usurping more. Unrest, disquiet, and disturbance will always arise among a people, jealous of their rights, from the exercise by the general government of powers which they have reserved to themselves or to the States.

My second proposition is that it is not competent for Congress to make the exercise of its punitive power dependent upon the legislation of the States. The act upon which the indictment of the petitioner from Ohio is founded makes the neglect or violation of a duty prescribed by a law of the State in regard to an election at which a representative in Congress is voted for a criminal offence. It does not say that the neglect or disregard of a duty prescribed by any existing law shall constitute such an offence. It is the neglect or disregard of any duty prescribed by any law of the State present or future. The act of Congress is not changed in terms with the changing laws of the State; but its penalty is to be shifted with the shifting humors of the State legislatures. I cannot think that such primitive legislation is valid, which varies, not by direction of the Federal legislators, upon new knowledge or larger experience, but by the direction of some external authority which makes the same act lawful in one State and criminal in another, not according to the views of Congress as to its propriety, but to those of another body. The Constitution vests all the legislative power of the Federal government in Congress; and from its nature this power cannot be delegated to others, except as its delegation may be involved by the creation of an inferior local government or department. Congress can endow territorial governments and municipal corporations with legislative powers, as the possession of such powers for certain purposes of local administration is indispensable to their existence. So, also, it can invest the heads of departments and of the army and navy with power to prescribe regulations to enforce discipline, order, and efficiency. Its possession is implied in their creation; but legislative power over subjects which come under the immediate control of Congress, such as defining offences against the United States, and prescribing punishment for them cannot be delegated to any other government or authority. Congress cannot, for example, leave to the States the enactment of laws and restrict the United States to their enforcement. There are many citizens of the United States in foreign countries, in Japan, China, India, and Africa. Could Congress enact that a crime against one of those States should be punished as a crime against the United States? Can Congress abdicate its functions and depute foreign countries to act for it? If Congress cannot do this with respect to offences against those States, how can it enforce penalties for offences against any other States, though they be of our own Union? If Congress could depute its authority in this way; if it could say that it will punish as an offence what another power enacts as such, it might do the same thing with respect to the commands of any other authority, as, for example, of the President or the head of a department. It could enact that what the President proclaims shall be law; that what he declares to be offences shall be punished as such. Surely no one will go so far as this, and yet I am unable to see the distinction in principle between the existing law and the one I suppose, which seems so extravagant and absurd.

I will not pursue the subject further, but those who deem this question at all doubtful or difficult, may find something worthy of thought in the opinions of the Court of Appeals of New York and of the supreme courts of several other States, where this subject is treated with a fulness and learning, which leaves nothing to be improved and nothing to be added.

I am of opinion that the act of Congress was unauthorized and invalid; that the indictment of the petitioner from Ohio, and also the indictments of the petitioners from Maryland, and their imprisonment, are illegal, and that, therefore, they should all be set at liberty.

title: Ex Parte Clarke/Dissent Field


text: Talk:Ex Parte Clarke/Dissent Field

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:Ex Parte Clarke/Dissent Field


text:
Packet Company v. St Louis

ERROR to the Circuit Court of the United States for the Eastern District of Missouri.

The facts are stated in the opinion of the court.

Mr. James H. Davidson, for the plaintiff in error.

Mr. Leverett Bell, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Packet Company v. St Louis


text: Talk:Packet Company v. St Louis

title: Talk:Packet Company v. St Louis


text:
Packet Company v. St Louis/Opinion of the Court

The plaintiff in error is a corporation of the State of Iowa, and, during the years 1870, 1871, and up to March 28, 1872, was engaged with steamboats and barges of which it was the owner, in the business of commerce and navigation on the Mississippi River, between ports and places in different States. Its steamboats and barges, in the course of such business, landed at St. Louis, and, during the period named, it paid to that city, upon the demand of its constituted authorities, large sums of money, amounting in the aggregate to $6,571.35. These sums were exacted as wharfage dues, in virtue of certain ordinances of the city, one of which was entitled 'An ordinance establishing and regulating the harbor department,' and the other, 'An ordinance to reduce the rate of wharfage in the city of St. Louis.'

The authority of the city to collect these fees is referred to sect. 30 of the ordinance first named, which is as follows:--

'There shall be collected from each and every boat, of whatever kind or description,. . . for each and every time the same shall come within the harbor of said city, and land at any wharf or landing, or be made fast thereto, or to any boat thereto fastened, or shall receive or discharge any freight or passengers in this city, or shall tow coal or any other article in the harbor, seven and one-half cents for each ton of said boat's burden, by custom-house measurement, as wharfage dues. If the boat have no custom-house measurement, or if the harbor-master be not satisfied as to the correctness of said boat's custom-house measurement, he is hereby empowered and directed to ascertain the tonnage of said boat by measurement, according to the rules and regulations of the United States in the measurement of boats and wharfage shall be collected according to such measurement: Provided, that any boat making regular daily, semi-weekly, tri-weekly, or weekly trips, or is engaged in the business of towing, and ferry-boats, may pay wharfage dues at a different or special rate, as may be provided by this ordinance.'

The payments in question were made by the company whenever demanded, but always under protest, and without waiving any right it had to recover the same from the city by an action at law.

This action was instituted to compel the repayment of the sums thus collected, upon the ground that the ordinances in question, and particularly the section above quoted, was in conflict, 1st, with the clause prohibiting any State, without the consent of Congress, from laying any duty of tonnage; 2d, with the clause which declares that 'no tax or duty shall be laid on articles exported from any State; no preference shall be given any regulation of commerce or revenue to the ports of any one State over those of another; nor shall any vessels bound to or from one State be obliged to enter, clear, or pay duties in another;' 3d, with the clause conferring upon Congress the right to regulate commerce with foreign nations, among the several States, and with the Indian tribes; 4th, with the 'Treaty of Paris, 1783,' which declares that 'the navigation of the river Mississippi, from its source to the ocean, shall for ever remain free and open to the subjects of Great Britain and the citizens of the United States;' 5th, with the Troaty of Spain, concluded Oct. 27, 1795, which declares: '. . . And his Catholic Majesty has likewise agreed that the navigation of the said river, in its whole breadth, from its source to the ocean, shall be free only to his subjects and the citizens of the United States;' 6th, with the ordinance of 1787, which, among other things, provides 'that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and for ever free, as well to the inhabitants of the said territory as to the citizens of the United States, that may be admitted into the confederacy, without any tax, impost, or duty therefor.'

The court below, the circuit and district judges concurring, was of opinion that the plaintiff in error was legally bound to pay the sums so exacted and paid as wharfage fees, under the ordinances to which we have referred. Judgment was, accordingly, given for the city. Whether the facts set forth in the special finding are sufficient to sustain the judgment is the controlling question arising upon this writ of error.

The elaborate argument of counsel for the company is directed to the support of the first, second, and third of the foregoing propositions. He withholds any suggestion or argument in support of the remaining propositions, for the obvious reason, as we suppose, that the case must fail altogether unless the plaintiff in error can successfully maintain the invalidity of the ordinances, under some one or more of the constitutional provisions by him cited. If the particular section of the ordinance, by virtue of which these collections were made, is not in conflict with the Federal Constitution, there would be no ground whatever for holding that it was inconsistent with either of the treaties referred to, or with the ordinance of 1787. We will, therefore, only consider whether the city of St. Louis was inhibited by any provision of the Federal Constitution from charging and collecting the fees, to enforce the repayment of which is the object of this action.

By the charter of the city, its mayor and council were invested with authority to regulate the stationing, anchoring, and mooring of vessels, within the city, and to charge and collect wharfage on fire-wood, lumber, logs, &c., brought to the port of St. Louis. The council was also required, from time to time, to provide, by ordinance, for the levy and collection of taxes, licenses, wharfage, and other dues, under penalty for neglect or refusal to pay the same; also, for maintaining the permanency of and improving the wharf and harbor, and for opening and extending the wharf, applying, in its discretion, all the net receipts from wharfage to the credit of the wharf funds.

Under the authority thus conferred, the city passed the ordinance regulating and establishing its harbor department and prescribing the duties of the harbor-master.

By that ordinance it is declared that the harbor of the city comprises the bed of the Mississippi River, its channels, sloughs, bayous, bars, and islands, from the mouth of the Missouri River to the southern boundary of the city. The jurisdiction of the harbor-master is made to extend over all the lands, river bank, and beach dedicated, condemned, occupied, or used for wharf purposes, within the city, and over so much of the Mississippi River, and to the middle of the main channel thereof as lies immediately in front of the city, over which the city has control.

It is made his duty to direct the landing and stationing of all water-craft arriving at any point within the limits of the city, and to direct the discharge and removal of their cargoes, so as to prevent interference between different vessels and their cargoes; to superintend the arrangement of freight, merchandise, and materials for repairs in the river bank, so that the same shall occupy as little space as possible; to see that all combustible materials on the landing are sufficiently protected from fire; to keep the wharf and the river along the shore free from improper obstructions; to keep in repair the ring-bolts provided for fastening vessels; to regulate and control by proper rules to be established and published, all vehicles traversing the wharf or landing, and to remove thence such as unnecessarily obstruct free passage upon said wharf or landing, and generally to exercise complete supervision and control over the wharf, river bank, landing and Front Street.

It is also made his duty, under the direction of the mayor to provide, at the expense of the city, whenever the same shall be deemed necessary, suitable posts and ring-bolts for boats and rafts to make fast to and keep the same in repair; also to extend the steamboat landing, north and south, as soon as the wharf was made suitable for the landing of merchandise, and the depth of the water shall justify, so as to give room required by boats for the handling, receiving, and discharging of freight, and for the free passage of drays and other vehicles, and to designate the boundary of each class of boats, according to the wants of different trades at the time of such extension.

The duties thus imposed upon the harbor-master, if faithfully discharged, must, it will be conceded, materially advance, and not obstruct or burden trade and business on the Mississippi River, especially at the port of St. Louis. Services rendered by him in the execution of those duties would be in aid, and not a hinderance, of commerce and navigation. Besides, as the special finding discloses, the city acquired, at its own expense, and owns the property within its limits along the west bank of the Mississippi River, and for the purposes of a wharf has improved, paved, and maintains in repair, at its own cost, one and a half miles of the same at an enormous expense. That wharf was used by the plaintiff in error in conducting its business, at all stages of water, for the purpose of receiving and discharging freight, and for the convenience of passengers in getting on and off its boats. Its boats landed at and used only the improved wharf. And it is found as a fact in the case that the fees demanded from and paid by the company, under the city ordinances, 'were reasonable in amount, and a reasonable compensation for the use of defendant's wharf, if defendant (the city) was entitled to collect any sums whatever under said ordinance.'

From this analysis of the special finding and the ordinance establishing and regulating the harbor department of St. Louis, it is not difficult to apprehend the nature and scope of the question before us. Briefly stated, it is whether a municipal corporation, owning improved wharves and other artificial means which it has provided and maintains, at its own cost, for the benefit of those engaged in commerce upon the public navigable waters of the United States, is prohibited by the national Constitution from charging and collecting from those using its wharves and facilities, such reasonable fees as will fairly remunerate it for the use of its property?

This precise question has heretofore received careful consideration by this court, and we recognize nothing in this case which has not been concluded by former adjudications, or which requires extended discussion.

In Cannon v. New Orleans (20 Wall. 577), upon writ of error to the Supreme Court of Louisiana, we had occasion to consider the constitutional validity of an ordinance of the city of New Orleans, whereby 'levee and wharfage dues' were imposed upon steamboats mooring or landing 'in any part of the port' of that city, the amount of such duties to be determined, at a fixed rate, by the tonnage of such vessels. That case is relied upon here as sustaining the ground upon which the plaintiff in error assails the validity of the ordinance passed by the municipal authorities of St. Louis. We do not, however, assent to any such construction of our opinion in that case. It was in evidence there, that not more than one-tenth of the twenty miles and more of the levee and banks of the Mississippi, within the corporate limits of New Orleans, had any wharf, and that vessels often landed at various places, within the city, where no wharfage facilities existed. It does not appear from the opinion of the court, or from the reporter's statement of that case, where the landings of Cannon's steamer were actually made, whether at the improved wharf of the city, or at points where no wharf accommodations were furnished for the use of vessels. We, therefore, held, that the ordinance, interpreted in the light of the admitted condition of the river and its banks within the city, imposed a duty of tonnage for the mere privilege of stopping, mooring, or landing at the port of New Orleans, and that the charges exacted could not, in view of the special circumstances disclosed by the evidence, be regarded or supported, as compensation simply for the use of the city's wharves. But we there expressly recognized, as essential to the interests of commerce and navigation, and as entirely consistent with the provisions of the national Constitution, the right of a municipal corporation, thereunto authorized by the State which created it, to demand from those engaged in commerce just compensation for the use of wharves, or other artificial facilities, provided and maintained at its expense.

That such was the import of our decision in Cannon v. New Orleans is shown in the recent case of Packet Company v. Keokuk (95 U.S. 80), where the question under consideration was again and very fully examined in connection with an ordinance of Keokuk, which, in its main features, is like that now under examination. By the Keokuk ordinance wharfage fees were charged whenever a steamboat should make fast to any part of the wharf of that city, or to any vessel, or other thing at or upon said wharf, or should receive or discharge any passengers or freight thereon, or should use any part of the wharf for the purpose of discharging, receiving, or landing any freight or passenger-the fees, in such cases, to be measured by the tonnage of the boat using the wharf. The unanimous judgment of the court was that the Keokuk ordinance was not repugnant to the Constitution of the United States-that the wharfage fees collectible thereunder were by way of compensation to the city for the use of its property, and were not duties, taxes, or burdens for the mere privilege of entering the port of Keokuk, or remaining in it, or departing from it.

We need not repeat the reasons there given for the distinction between tonnage duties, which the States are prohibited from levying without the consent of Congress, and wharfage dues, properly so called, imposed in good faith, and to the extent only of fair remuneration for wharf accommodations furnished for the convenience of trade and commerce. We adhere to the doctrines announced in that case. They are decisive of the present one. The sums paid by the plaintiff in error were exacted and paid as compensation for the use of an improved wharf and not for the mere privilege of entering or stopping at the port of St. Louis, or for landing at the shore, in its natural condition, where there were no conveniences which could be called a wharf. The amount paid is conceded to have been just and reasonable compensation for vessels and barges such as those owned by the plaintiff in error. It was not out of proportion to the advantages and benefits enjoyed in the use of the improved wharf. The one was a fair equivalent for the other. Nor is there any ground whatever to suppose that these wharfage fees were exacted for the purpose of increasing the general revenue of the city beyond what was necessary to meet its outlay, from time to time, in maintaining its wharves in such condition as the immense business and trade of that locality required. We are not at liberty, from any thing disclosed by the record, to suppose that the city intended its ordinance as a mere cover for laying duties of tonnage within the meaning of the Federal Constitution.

What has been said renders it unnecessary to consider any other question presented in argument.

To avoid misapprehension, it is, perhaps, well to say that we express no opinion as to the validity of any of the provisions of the city charter or ordinances except such as have direct reference to the case before us. We restrict our decision to the single point that the city was not prohibited by the Federal Constitution from collecting the wharfage fees in question as reasonable compensation for the use of its wharves by the plaintiff in error.

Judgment affirmed.


text: Talk:Packet Company v. St Louis/Opinion of the Court


text:
Vicksburg v. Tobin

ERROR to the Circuit Court of the United States for the Southern District of Mississippi.

The facts are stated in the opinion of the court.

Mr. Philip Phillips, for the plaintiff in error.

Mr. W. B. Pittman, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Vicksburg v. Tobin


text: Talk:Vicksburg v. Tobin

title: Talk:Vicksburg v. Tobin


text:
Vicksburg v. Tobin/Opinion of the Court

This writ of error involves the constitutional validity of an ordinance of the city of Vicksburg, passed July 12, 1865, entitled 'An ordinance establishing the rate of wharfage to be collected from steamboats and other water-craft, landing and lying at the city of Vicksburg.'

The ordinance declares that all steamboats 'landing at this [that] city' shall pay wharfage at the following rates: All packets terminating their trips at the city, per week, $10; all steamboats under 1,000 tons burthen, passing and repassing, for each landing, $10; and, for each one exceeding 1,000 tons, $1 for every 100 tons excess; circus or exhibition boats, $5 per day.

The ordinance further provides that, if the captain or officer in command of any steamboat or water-craft shall refuse to comply with its provisions, on conviction thereof he shall be charged $100 for each landing thereafter, until the settlement of the litigated claim.

Within the six years immediately preceding the commencement of this action, the city of Vicksburg collected from the defendants in error (without protest or objection on their part, although they knew the rates established by the city) the sum of $5,400, 'for and on account,' as the special verdict of the jury recites, 'of wharfage for the landing of plaintiffs' [defendants in error] boats at the city landing of Vicksburg on the Mississippi, plaintiffs' boats being at the time engaged in the coasting trade on said river, between New Orleans and Vicksburg, and other ports above Vicksburg.'

This action was instituted to recover from the city the sums thus exacted from the defendants in error. Judgment upon the special verdict of the jury was rendered against the city, to reverse which this writ of error is prosecuted.

It appeared, upon the trial in the Circuit Court, that the corporation of Vicksburg has been the riparian owner of the city landing, on account of which these charges were made, since 1851; that the former owner uniformly collected wharfage from steamboats stopping at said landing up to 1851, and that the city had done the same ever since that date, but at higher rates; that the landing is comprised in a river-front in the city, covering a length of about eighteen hundred feet between high and low-water mark; that the landing is worth $50,000, in the repair and improvement of which the city had expended, within the six years preceding the trial, $40,000; that the only improvement made by the city at the landing was the grading and piling of the bank to prevent caving; that, although the landing was not paved or covered with plank, it was a good landing in dry weather, but too muddy in wet weather to use as a place of deposit for freight; that the annual net receipts by the city from the use of the landing did not exceed $11,500; that the wharf and harbor-master demanded and received from each boat stopping at the city landing $10, and no more, without reference to the tonnage of the boat or the time it lay at the landing.

It was also in evidence that, during the whole period for which collections were made from defendants in error, the Merchants' Wharf-boat Association had a wharf-boat lying at the city landing, and, for the privilege of occupying the space necessary therefor, had paid the city $2,000 per annum; that, during that period, the boats of the defendants in error had touched the city landing only about twenty times, upon all other occasions landing against or fastening to the boat of the Merchants' Association.

The record discloses other facts; but they do not seem to be material in the determination of the case.

The judgment rests mainly upon the ground that the ordinance by virtue of which the money sued for was demanded and collected was in conflict, as well with the clause of the Constitution of the United States conferring upon Congress the power to regulate commerce among the States, as with the clause inhibiting the States from laying duties of tonnage.

This question is disposed of by the opinion just rendered in Packet Company v. St. Louis, supra, p. 423. It is, in substance, the same question as that decided in Packet Company v. Keokuk, 95 U.S. 80. The latter case had not been determined in this court, when the judgment now complained of was rendered. Here, as in the cases concerning the ordinances of Keokuk and St. Louis, the sums sued for were exacted and received as wharfage-fees by way of compensation for the sue of an improved wharf, purchased and maintained by a municipal corporation at its own cost, for the benefit of commerce and navigation. They were not exacted for the mere privilege of entering or remaining in or departing from the port of Vicksburg. The ordinance in question does not, therefore, entrench upon the power of Congress to regulate commerce among the States, nor does it lay a duty of tonnage in the sense of the Constitution.

It is contended that this ordinance, in explicit language, imposes a tax for merely landing at the city, and points on the shore where there may have been in fact no wharf. If the ordinance was susceptible of that construction, a question would be presented for our determination altogether different from the one before us. Clearly, the city could not collect wharfage for the use of the unimproved shore of the river, or for that which was not, in any fair business sense, a wharf. Here there was an improved wharf, and as such it was used by the boats of the defendants in error. The sums demanded were paid as and for wharfage dues, collectible under an ordinance which, rightly construed, only authorized the imposition of dues, by way of reasonable compensation, for the use, not of the river shore in its natural condition, but of the wharves of the city, erected and maintained at public expense.

One other point deserves notice. The circumstance that the defendants in error paid the Merchants' Wharf-boat Association its regular charges for landing at or against its boat does not affect the right of the city to demand from vessels the wharfage dues prescribed by the ordinance in question. It does not appear that the city, by granting the privilege which it did to that association, waived or intended to surrender its claim for wharfage from vessels landing against the association wharf-boat. All freight received by or discharged from such vessels necessarily passed over the city's wharf to its destination. It is not to be presumed that the city intended, by the special privileges granted to the Merchants' Wharf-boat Association, to waive its claim for wharfage dues from vessels landing against that boat, and using the city's wharf.

In view of what has been said touching the validity of the city ordinance, it is unnecessary to inquire whether, had such ordinance been held to be unconstitutional, the defendants in error, under the evidence in this action, could recover back what they had paid without protest or objection, and with a full knowledge of all the facts.

The judgment of the Circuit Court will be reversed, with directions to render judgment for the city upon the special verdict of the jury; and it is

So ordered.

title: Vicksburg v. Tobin/Opinion of the Court


text: Talk:Vicksburg v. Tobin/Opinion of the Court


text:
Guy v. Baltimore

Section 4 of an act of the General Assembly of Maryland of 1827, chapter 162, entitled 'An Act to appoint State wharfingers in the city of Baltimore, and to authorize the collection of wharfage in certain cases in said city' (Maryland Code of Public Local Laws, art. 4, sect. 945), provides as follows:--

'The mayor and city council of Baltimore shall be, and they are hereby, empowered and authorized to regulate, establish, charge and collect, to the use of the said mayor and city council, such rate of wharfage as they may think reasonable, of and from all vessels resorting to or lying at, landing, depositing, or transporting goods or articles other than the productions of this State, on any wharf or wharves belonging to said mayor and city council, or any public wharf in the said city, other than the wharves belonging to or rented by the State.'

Pursuant to the authority conferred by said act, the mayor and city council, on July 27, 1858, passed an ordinance 'to regulate the public wharves in the city of Baltimore,' the provisions of which, as found in the thirty-third and thirty-fifth sections of art. 22 in the Baltimore City Code, are as follows:--'SECT. 33. All goods, wares, or merchandise, landed on the public wharves from on board of any vessel or vessels lying at said wharves. . . shall pay the following rates of wharfage for each and every day the same may remain thereon. . . to be paid by the owner or consignee, or in the event of there being none, the master of the vessel, and all goods shipped from one vessel to another, one-half to be paid by the shipper, bags of coffee, ginger, pepper, or any other articles in similar bags, each one cent; bales of merchandise,. . . &c., each four cents; barrels of every description containing merchandise or otherwise, each two cents; boxes of sugar,. . . &c., each three cents;. . . grain per bushel, and all other articles sold by the bushel, other than the product of the State of Maryland, one-half cent; grindstones, each one cent;' &c., 'all other goods not enumerated in the above list to pay in proportion.'

'SECT. 35. All vessels resorting to or lying at, landing, depositing or transporting goods or articles other than the production of this State, on or from any wharf or wharves belonging to the mayor and city council, or any public wharf in the said city, other than the wharves belonging to or rented by the State, shall be chargeable with the wharfage as fixed by this ordinance, upon all goods or articles landed or deposited on any wharf or wharves belonging to the said mayor and city council; and the master or owner of the vessel so depositing, landing, or transporting said goods or articles, shall be responsible for the same.'

The act of the General Assembly of 1860, chapter 226 (Code of Public General Laws, art. 96, sect. 18), requires potatoes to be sold in the State of Maryland 'by weight, at the rate of fifty-six pounds to the bushel,' under penalty of a fine of ten dollars.

Sect. 6 Revised Ordinances of 1858 (Baltimore City Code, art. 22, sect. 10) is as follows:--

'It shall not be lawful for any vessel landing or receiving cargo at any of the wharves within the limits of the city, which is required to pay wharfage on cargo or vessel to the harbor masters of the city of Baltimore, to leave the wharf where said vessel receives or discharges her cargo, without furnishing said harbor master, upon application, with his manifest or bills of lading of cargo, and paying the wharfage on the same, under a penalty of $20, to be collected, as other debts are collected, from the captain, commander, owner, or consignees of said vessels so offending.'In June, 1876, Edward T. Guy, a resident in and citizen of the county of Accomac, in the State of Virginia, arrived at the city of Baltimore with the schooner 'George S. Powell,' of which he was captain and part owner, laden with a cargo of potatoes raised and produced in the State of Virginia, and landed said cargo, amounting to two hundred and twenty bushels, on Pratt Street wharf, belonging to said city, not 'that part of Pratt Street wharf reserved.' Thereupon the harbor-master demanded of him the sum of $4.40 wharfage upon said potatoes so landed; and payment thereof being refused, the city of Baltimore brought this action of debt, to recover the penalty of $20, imposed by art. 22, sect. 10, of the city code, supra. The defendant appeared, and judgment for $20 penalty and costs having been rendered against him, he appealed to the Baltimore City Court, at the trial wherein he prayed the court to grant, as the law of the case, the following propositions:--

1st. That the act of the General Assembly of Maryland of 1827, c. 162, sect. 4, and the portions of the ordinances of the mayor and city council passed thereunder, which impose a special wharfage charge on extra-state grown products, are repugnant to the third clause of the eighth section of art. 1 of the Constitution of the United States, and unlawful.

2d, That the act of the General Assembly of Maryland of 1827, c. 162, sect. 4, and the portions of the ordinances of the mayor and city council passed thereunder, which impose a special wharfage charge on extra-state grown products, are repugnant to the second clause of the tenth section of art. 1 of the Constitution of the United States, and unlawful.

3d, That the act of the General Assembly of Maryland of 1827, c. 162, sect. 4, and the portions of the ordinances of the mayor and city council passed thereunder, which impose a special wharfage charge on extra-state grown products, are an infringement upon the rights, privileges, and immunities of the appellant, claimed under the first clause of the second section of art. 4 of the Constitution of the United States, and are unlawful.

The court having refused to grant said propositions and affirmed the judgment below, Guy sued out this writ of error.

Mr. Frederick J. Brown, for the plaintiff in error.

The act of the General Assembly of Maryland and the ordinances of the city of Baltimore, under which this action was brought, are repugnant to the Constitution of the United States, and therefore void. Brown v. Maryland, 12 Wheat. 419; Steamship Company v. Port Wardens, 6 Wall. 31; Woodruff v. Parham, 8 id. 123; Hinson v. Lott, id. 148; Ward v. Maryland, 12 id. 418; State Tonnage Tax Cases, id. 204; Case of the State Freight Tax, 15 id. 232; Peete v. Morgan, 19 id. 581; Cannon v. New Orleans, 20 id. 577; Railroad Company v. Maryland, 21 id. 456; Welton v. State of Missouri, 91 U.S. 275; Henderson v. Mayor, &c., 92 id. 259; McCready v. Virginia, 94 id. 391; Cooke v. Pennsylvania, 97 id. 566; Packet Company v. Keokuk, 95 id. 80; The Wharf Case, 3 Bland (Md.), 361.

Mr. James L. McLane, contra, cited Dugan v. Mayor, &c., 5 Gill & John. (Md.) 357; Passenger Cases, 7 How. 402; Conner v. Elliott, 18 id. 591; Steamship Company v. Port Wardens, 6 Wall. 31; Woodruff v. Parham, 8 id. 136; Downham v. Alexandria Council, 10 id. 173; Marshall v. Vicksburg, 15 id. 146; Case of the State Freight Tax, id. 277; McCready v. Virginia, 94 U.S. 391; Packet Company v. Keokuk, 95 id. 80; Cooley on Taxation, 62.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Guy v. Baltimore


text: Talk:Guy v. Baltimore

title: Talk:Guy v. Baltimore


text:
Guy v. Baltimore/Opinion of the Court

In Woodruff v. Parham (8 Wall. 123), we had occasion to consider the constitutional validity of an ordinance of the city of Mobile under the provisions of which had been assessed, for municipal purposes, a tax upon sales in that city of certain goods and merchandise, the product of States other than Alabama. The ordinance, in its application to articles carried into Alabama from other States, was assailed as being inconsistent with the constitutional inhibition upon the States levying imposts or duties on imports or exports-with the power of Congress to regulate commerce with foreign nations and among the several States-and with that clause which declares that the citizens of each State shall be entitled to all the immunities and privileges of citizens of the several States.

Touching the first of these propositions it was ruled that the term import, as used in sect. 10, art. 1, of the Constitution, had reference to articles imported from foreign countries, and not to such as were brought from one of the States of the Union into another. In the argument, Brown v. Maryland (12 Wheat. 419) was cited in support of the proposition that the whole ordinance, in its application to articles brought from other States to Mobile for sale, was an unauthorized regulation of inter-state commerce. Upon that branch of the case, we said: 'If the court there [in Brown v. Maryland] meant to say that a tax levied on goods from a sister State, which was not levied on goods of a similar character produced within the State, would be in conflict with the clause of the Constitution giving Congress the right to regulate commerce among the States, as much as the tax on foreign goods, then under consideration, was in conflict with the authority to regulate commerce with foreign nations, we agree to the proposition.'

In a subsequent portion of our opinion in Woodruff v. Parham, it was said: 'But we may be asked, is there no limit to the power of the States to tax the produce of other States brought within their borders? And can they so tax them as to driver them out or altogether prevent their introduction or their transit over their territory? The case before us is a simple tax on sales of merchandise imposed alike upon all sales made in Mobile, whether the sales be made by a citizen of Alabama, or of another State, and whether the goods sold are the products of that State or of some other. There is no attempt to discriminate injuriously against the products of other States, or the rights of their citizens, and the case is not, therefore, an attempt to fetter commerce among the States, or to deprive the citizens of other States of any privilege or immunity possessed by citizens of Alabama. But a law having such operation would, in our opinion, be an infringement of the provisions of the Constitution which relate to those subjects, and, therefore, void.'

In Hinson v. Lott (8 Wall. 148), we upheld a statute of Alabama, imposing taxes upon the sale of spirituous liquors within its limits, upon the ground that it did not discriminate against the products of other States, and only subjected them to the same taxation imposed upon similar articles manufactured in that State. Had the statute been susceptible of a different construction, it would have been held to be repugnant to the Constitution.

In Ward v. Maryland (12 id. 418), we examined the provisions of a statute of Maryland which, among other things, required of persons, not permanent residents of that State, before selling or offering for sale within the limits of the city of Baltimore, and goods, wares, or merchandise whatever, other than agricultural products and articles manufactured in that State, to obtain a license therefor. The amount exacted for such license was larger than the statute required of resident traders engaged in like business. In declaring the statute to be repugnant to the Federal Constitution, we said that, 'inasmuch as the Constitution provides that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States, it follows that the defendant might lawfully sell or offer or expose to sale, within the district described in the indictment, any goods which the permanent residents of the State might sell or offer or expose for sale in that district, without being subjected to any higher tax or excise than that exacted by law of such permanent residents.'

Upon the same ground, in the more recent case of Welton v. State of Missouri (91 U.S. 275), we held void a statute of Missouri imposing a peddler's license-tax upon persons going from place to place to sell patent and other medicines, goods, wares, or merchandise, except books, charts, maps, and stationery, not the growth, product, or manufacture of that State, and which did not impose a like tax upon the sale of similar articles, the growth, product, or manufacture of Missouri.

In view of these and other decisions of this court, it must be regarded as settled that no State can, consistently with the Federal Constitution, impose upon the products of other States, brought therein for sale or use, or upon citizens because engaged in the sale therein, or the transportation thereto, of the products of other States, more onerous public burdens or taxes than it imposes upon the like products of its own territory.

If this were not so, it is easy to perceive how the power of Congress to regulate commerce with foreign nations and among the several States could be practically annulled, and the equality of commercial privileges secured by the Federal Constitution to citizens of the several States be materially abridged and impaired. 'Over whatever other interests of the country,' said Mr. Webster, 'this government may diffuse its benefits and blessings, it will always be true, as matter of historical fact, that it had its immediate origin in the necessities of commerce; and for its immediate object, the relief of those necessities, by removing their causes, and by establishing a uniform and steady system.' But State legislation such as that indicated in the cases which have been cited, if maintained by this court, would ultimately bring our commerce to that 'oppressed and degraded state,' existing at the adoption of the present Constitution, when the helpless, inadequate Confederation was abandoned and a national government instituted, with full power over the entire subject of commerce, except that wholly internal to the States composing the Union.

How far the principles enunciated in the foregoing cases control the determination of the one before us, we now proceed to inquire.

By an act of the General Assembly of Maryland, passed in 1827, authority was given to the mayor and city council of Baltimore to regulate, establish, charge, and collect to their use such rate of wharfage as they might think reasonable, of and from all vessels resorting to or lying at, landing, depositing, or transporting goods or articles, other than the products of that State, on any wharf or wharves belonging to that municipal corporation, or any public wharf in the city other than the wharves belonging to or rented by the State, and that part of Pratt Street wharf, theretofore reserved for the use of the citizens of that State. Maryland Code of Public Local Laws, art. 4, sect. 945.

In pursuance of that act the city, by its constituted authorities, in the year 1858, passed an act regulating the public wharves. By its thirty-third section it is declared that all goods, wares, or merchandise landed on the public wharves from on board any vessels lying at said wharves, or placed thereon for the purpose of shipment or exposure for sale, other than the product of the State of Maryland, shall pay wharfage according to certain rates therein prescribed. The thirty-fifth section declares that 'all vessels belonging to or lying at, landing, depositing, or transporting goods or articles other than the production of this State, on or from any wharf or wharves belonging to the mayor and city council, or any public wharf in the said city, other than the wharves belonging to or rented by the State, shall be chargeable with the wharfage as fixed by this ordinance, upon all goods or articles landed or depositied on any wharf or wharves belonging to the said mayor and city council; and the master or owner of the vessel so depositing, landing, or transporting said goods or articles, shall be responsible for the same.' The ordinance contained other sections providing for its enforcement.

The appellant Guy, a resident citizen of Accomac County, Virginia, was engaged in the year 1876 in sailing a schooner, of which he was master and part-owner, from the county to Baltimore, laden with potatoes raised in Virginia. In June of that year, he landed his vessel at one of the public wharves belonging to the city (not that part of the Pratt Street wharf reserved), and discharged therefrom two hundred and twenty barrels of potatoes. Under the authority of the foregoing statute and ordinance, the city harbor-master demanded of him the payment of $4.40 as wharfage. He refused to comply with that demand, and, being sued by the city, judgment was rendered against him in the court of a justice of the peace, which was affirmed by the City Court of Baltimore, the highest court of Maryland in which a decision of the case could have been had.

It is admitted that such wharfage dues are not and never have been assessed against parties or vessels bringing to that port potatoes or other articles grown in the State of Maryland.

The argument in support of the statute and ordinance upon which the judgment below rests is that the city, by virtue of its ownership of the wharves in question, has the right, in its discretion, to permit their use to all vessels landing thereat with the products of Maryland; and that those operating vessels, laden with the products of other States, cannot justly complain, so long as they are not required to pay wharfage fees in excess of reasonable compensation for the use of the city's property.

This proposition, however ingenious or plausible, is unsound both upon principle and authority. The municipal corporation of Baltimore was created by the State of Maryland to promote the public interests and the public convenience. The wharf at which appellant landed his vessel was long ago dedicated to public use. The public for whose benefit it was acquired, or who are entitled to participate in its use, are not alone those who may engage in the transportation to the port of Baltimore of the products of Maryland. It embraces, necessarily, all engaged in trade and commerce upon the public navigable waters of the United States. Every vessel employed in such trade and commerce may traverse those waters without let or hinderance from local or State authority; and the national Constitution secures to all, so employed, without reference to the residence or citizenship of the owners, the privilege of landing at the port of Baltimore with any cargo whatever, not excluded therefrom by, or under the authority of, some statute in Maryland enacted in the exertion of its police powers. The State, it will be admitted, could not lawfully impose upon such cargo any direct public burden or tax because it may consist, in whole or in part, of the products of other States. The concession of such a power to the States would render wholly nugatory all national control of commerce among the States, and place the trade and business of the country at the mercy of local regulations, having for their object to secure exclusive benefits to the citizens and products of particular States. But it is claimed that a State may empower one of its political agencies, a mere municipal corporation representing a portion of its civil power, to burden inter-state commerce by exacting from those transporting to its wharves the products of other States wharfage fees, which it does not exact from those bringing to the same wharves the products of Maryland. The city can no more do this than it or the State could discriminate against the citizens and products of other States in the use of the public streets or other public highways. The city of Baltimore, if it chooses, can permit the public wharves, which it owns, to be used without charge. Under the authority of the State, it may also exact wharfage fees, equally, from all who use its improved wharves, provided such charges do not exceed what is fair remuneration for the use of its property. Pocket Company v. St. Louis, supra, p. 423; Vicksburg v. Tobin, supra, p. 430; Packet Company v. Keokuk, 95 U.S. 80. But it cannot employ the property it thus holds for public use so as to hinder, obstruct, or burden inter-state commerce in the interest of commerce wholly internal to that State. The fees which it exacts to that end, although denominated wharfage dues, cannot be regarded, in the sense of our former decisions, as compensation merely for the use of the city's property, but as a mere expedient or device to accomplish, by indirection, what the State could not accomplish by a direct tax, viz., build up its domestic commerce by means of unequal and oppressive burdens upon the industry and business of other States.

Such exactions, in the name of wharfage, must be regarded as taxation upon inter-state commerce. Municipal corporations, owning wharves upon the public navigable waters of the United States, and quasi public corporations transporting the products of the country, cannot be permitted by discriminations of that character to impede commercial intercourse and traffic among the several States and with foreign nations.

In the exercise of its police powers, a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are prejudicial to the health or which would endanger the lives or property of its people. But if the State, under the guise of exerting its police powers, should make such exclusion or prohibition applicable solely to articles, of that kind, that may be produced or manufactured in other States, the courts would find no difficulty in holding such legislation to be in conflict which the Constitution of the United States.

The power of the national government over commerce with foreign nations and among the several States is broad and comprehensive. It reaches the interior of every State of the Union, so far as it may be necessary to protect the products of other States and countries from discrimination by reason of their foreign origin. Brown v. Maryland, 12 Wheat. 419.

Nothing can be clearer than that the statute of Maryland and the ordinance of the city of Baltimore, in the respects adverted to, are in conflict with the power of Congress over the subject of commerce.

The judgment is reversed, with directions to dismiss the action against the appellant, with his costs against the city.

So ordered.

MR. CHIEF JUSTICE WAITE dissenting.

I cannot concur in this judgment. We have decided that a municipal corporation may collect reasonable compensation for the use of its improved public wharves and landing-places. Such a charge is in no just sense a tax or burden. The State of Maryland has seen fit to prohibit the city of Baltimore from making any such charge for landing and depositing the products of the State. That was all the State undertook to do. I am unable to bring my mind to the conclusion that the Constitution of the United States makes this the equivalent of a provision that all wharfage at the public wharves belonging to the city shall be free so long as the law as it now stands is in force.

title: Guy v. Baltimore/Opinion of the Court


text: Talk:Guy v. Baltimore/Opinion of the Court


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Pierce v. Wade

ERROR to the Circuit Court of the United States for the District of Kansas.

The facts are stated in the opinion of the court.

Mr. Nelson Cobb for the plaintiffs in error.

No counsel appeared for the defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Pierce v. Wade


text: Talk:Pierce v. Wade

title: Talk:Pierce v. Wade


text:
Pierce v. Wade/Opinion of the Court

This was a suit in replevin brought by Pierce and Reed, the plaintiffs, in error, against Wade to recover a large number of cattle branded in a particular way. In executing the writ, the marshal, by mistake, took from the defendant sixty-two head of Texas steers, not having the proper brand, and delivered them with the other cattle to the plaintiffs, on receiving the requisite bond. On the trial, it was found that the plaintiffs were the owners, and entitled to the immediate possession of all thus delivered over to them, except the Texas steers, taken by mistake. It was thereupon adjudged that they 'have and recover from the said defendant the possession of all the cattle,. . . except sixty-two head of Texas steers;' and, as to these, it was adjudged that they be returned by the plaintiffs to the defendant, or if that could not be done, 'that the defendant have and recover from the plaintiffs the said sum of $1,400, the value thereof.' From that judgment the plaintiffs below have taken this writ of error.

Upon this state of facts it is clear we have no jurisdiction. The matter in dispute is the sixty-two head of Texas steers, the value of which is only $1,400. The plaintiffs recovered every thing else which they claimed, and the judgment against them is less than $5,000. We have always held that when a case is brought here by the defendant below, the amount of the recovery against him is the measure of our jurisdiction, except when he has asked affirmative relief, and that has been denied. The same rule is applicable to plaintiffs in replevin suits, where the defendant gets judgment for a return of property taken and delivered under the writ, or its value.

Writ of error dismissed.

NOTE.-In Pierce v. Tough, error to the Circuit Court of the United States for the District of Kansas, submitted by the same counsel as was the preceding case, MR. CHIEF JUSTICE WAITE remarked that, as the judgment was for $2,000 only, the case was in all material respects like that of Pierce v. Wade (supra, p. 444), and that, for the reasons there stated, the writ would be dismissed.

So ordered.

title: Pierce v. Wade/Opinion of the Court


text: Talk:Pierce v. Wade/Opinion of the Court


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Case v. Bank

ERROR to the Circuit Court of the United States for the District of Louisiana.

This is an action by the Citizens' Bank of Louisiana against Frank F. Case, receiver of the Crescent City National Bank, to recover damages for an alleged refusal on the part of the latter bank to permit a transfer of two hundred and twenty shares of its capital stock.

The petition, which was filed Feb. 24, 1876, alleges, in substance, that the shares were pledged to the Citizens' Bank by Lizardi & Co., to secure the payment of their note to it for $20,000; that the act of pledge contained an authority to the Citizens' Bank to sell and transfer the stock, for the purpose of paying said note; that said stock was sold under the act of pledge for $40 per share, but that the Crescent City National Bank refused to permit the transfer thereof on its books, alleging the indebtedness of Lizardi & Co. to it as an excuse for such refusal; that, by such refusal, the sale of said stock was prevented; and that, before legal steps could be taken to enforce the right of transfer, the Crescent City National Bank failed, causing a loss to the Citizens' Bank of $8,800.

The prayer is, that the receiver be ordered to recognize the Citizens' Bank as a creditor for said sum; and that he place it on the next tableaux of distribution for its share of the amount already divided among creditors, and in all future dividends to be distributed.

On the 15th of March, 1876, the receiver filed an exception, setting up two grounds of defence: 1. That the cause of action did not accrue within one year next before the commencement of the action, as appears from the petition filed. 2. That the petition did not disclose a cause of action.

These exceptions having been overruled, he filed an answer reserving them, and denying all the allegations of the petitioner, except his appointment.

A verdict of the jury in favor of the plaintiff below for $4,000, with five per cent interest from March 6, 1873, having been returned, the court rendered judgment 'that the Citizens' Bank of Louisiana do have and recover of the Crescent City National Bank, Frank F. Case, receiver, $4,000 and interest, & c.;. . . and that Frank F. Case, receiver, do recognize the said Citizens' Bank of Louisiana as creditor;. . . and that he do pay the same, or certify the same to the comptroller, to be paid in due course of administration;. . . and that the Citizens' Bank of Louisiana do receive, before further payment to creditors, its due proportion of dividends pro rata with those already paid to the creditors of the Crescent City National Bank.'

The receiver, thereupon, brought the case here.

The remaining facts are set forth in the opinion of the court.

Mr. J. D. Rouse and Mr. William Grant for the plaintiff in error.

Mr. A. Pitot and Mr. Edward Janin, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Case v. Bank


text: Talk:Case v. Bank

title: Talk:Case v. Bank