CANNON V. NEW ORLEANS, 87 U. S. 577 (1874)

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U.S. Supreme Court

Cannon v. New Orleans, 87 U.S. 20 Wall. 577 577 (1874)

Cannon v. New Orleans

87 U.S. (20 Wall.) 577


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

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

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

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

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

The Constitution of the United States ordains as follows: [Footnote 1]

"Congress shall have power to regulate commerce with foreign nations and among the several states and with the Indian tribes. No state shall, without the consent of Congress, lay any duty of tonnage. "

Page 87 U. S. 578

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

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

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

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

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

"The same points that are made in this case, supported by the same line of argument as here, were presented in the case of First Municipality v. Pease, [Footnote 2] and were decided adversely to the position taken by the plaintiff in this case."

"We think the views there expressed correct."

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

Page 87 U. S. 579

as compensation for commercial facilities furnished by the city, and for which, by the common consent of mankind, compensation is paid. [Footnote 3] The question of the right to impose such charges, whether under the name of wharfage or levee dues, being judicially determined, the manner and extent of its exercise are left to those to whom the management of the municipal affairs are entrusted, under their responsibility to those whom they represent. The aggregate of charges may possibly be largely in excess of the actual necessary expenses during one year, and the very next be insufficient to meet. This will result from the nature of the river banks, the action of the river current, the quality and nature of materials used, the fluctuations of commerce; and many other causes unforeseen and irregular in their operation, and all which show the impossibility of judicial control and regulation of the subject."

From the decree of dismissal, Cannon brought the case here.

Page 87 U. S. 580

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