
    Same Case.—On a Re-hearing.
    On a question as to the constitutional authority of Congress, and the consequent restriction upon the power of State Legislatures, a decision of the Supreme Court of the United States must be regarded as settling the law.
    
      H. H. Strawbridge. for the plaintiff,
    contended, that the law of 1843 was not a violation of the constitution of the United States. Similar laws have been passed in other States, and their constitutionality has been sustained. See a statute of the State of New York, enacted for the support of its Marine Hospital. 1 Rev. Statutes, p. 48, and voL 3, p. 274, ed. of 1837. Also a law of the same State, (l Rev. Stat., vol. 1, p. 637, s. 69,) relative to paupers. This last law was declared constitutional by the Supreme Court of that State, in the case of Neto York v. Staples, 6 Cowen, 169, and by the Supreme Court of the United States in Candler et al. v. The Mayor, Spc. of New York. See 1 Wendell, 493. See also the case of Norris v. The City of Boston, 4 Metcalf, 282, in which an act of the Legislature of Massachusetts, subject ingshipmasters to a tax on every passenger for the purpose of providing a pauper fund, was declared to be constitutional ; and see the law of the same State, passed in 1830, on the same subject. 1 Metcalf & Perkins’ Rev. Statutes, p. 373. The case of The Mayor, fc of New York v. Miln, 11 Peters, 102, in which the Supreme Court of the United States affirmed the constitutionality of the New York statute of 1824, requiring in certain cases indemnity bonds from masters of vessels bringing passengers into the city of New York, is still more in point. See the act of the Legislature of Delaware of 12th February, 1829, s. 15, similar to the New York law of 1824, and a law of this State on the same subject, passed in 1818, and the law of 1821 on the subject of quarantine.
    
      Eustis, for the appellant.
    The question whether the law under consideration is contrary to that provision of the constitution which vests in Congress the power to regulate commerce among the several States, is almost one of fact. The court see nothing in it which restrains the freedom of navigation, or renders the navigation of our rivers more onerous. Is not a tax onerous 1 Is navigation free when it is taxed 1 Do not duties on goods render their importations onerous ? Do not duties restrain importations, and are goods that pay duties in any sense free ? The mail which transports letters and packages is not free, in any sense, except for those which are franked, or on which no postage is charged. A road for which toll is exacted is not free. An imposition on persons engaged in commerce going from place to place, is as much a regulation of commerce in poiut of fact, as a duty on merchandize. If persons are taxed on their arrival, how can it be said that their ingress is free, or that the intercourse is not restrained.
    It is contended, that this tax does not interfere with the power to regulate commerce. Did the occlusion of China affect its commerce ? The exclusion of strangers from its limits rendered that nation anti-commercial; and it may be asked, what nation ever imposed a tax on intercourse between different portions of its territory ?
    “ T.he right of carrying passengers is given by the coasting license. It gives permission to trade, which includes the right of transporting passengers for hire. If, as our whole course of legislation on this subject shows, the power of Congress has been universally understood in America to comprehend navigation, it is a very persuasive, if not a conclusive argument, to prove that the construction is correct, and if it be correct, no clear distinction is perceived between the power to regulate vessels employed in transporting men for hire and property for hire. The subject is transferred to Congress, and no exception to the grant can be admitted, which is not proved by the words or the nature of the thing. A coasting vessel employed in the transportation of passengers, is as much a portion of the American marine, as one employed in the transportation of a cargo; and no reason is perceived why such vessel should be withdrawn from the regulating power of that government which has been thought best fitted for the purpose generally.” Ch. J. Marshall, Gibbons v. Ogden, 9 Wheaton, 215. The strongest argument against the legality of this tax is, the uniform concurrent legislation of the different States up to the present time. The conviction of its unconstitutionality must have been abiding and universal in the United States.
    But States have exercised a supervision and power of taxation over foreign passengers, and such laws have been held to be constitutional; though we find no decision in which the right of the State to tax the passenger directly, is admitted — the captains, owners, &c., are taxed by the State, but not the passengers. The ground on which these decisions rest is, the power which every State has to regulate its own police, which includes a control over paupers, and the public health, which it may protect by quarantine and health laws of every description. . This power is founded on necessity, and is inherent in every community. The assumption that the present tax is authorized by this power, in the absence of the necessity, is inadmissible. -In no case has the right to tax passengers coming from other States ia licensed coasting vessels of the United States, ever been, even by implication, countenanced.
    The reasoning in the decision in Miln’s case, (11 Peters, J 05,) does not apply to our internal commerce. Merchants carry on their trade themselves in different parts of the Union. The merchant of Boston, of New York, of St. Louis and Cincinnati transacts his business in New Orleans. The New York merchant lives in New Jersey; the merchant of Philadelphia resides there or perhaps in Delaware. The Cincinnatian has his house in Kentucky, and he of Illinois, perhaps in St. Louis. To tax these merchants every time they cross the river to go - to their counting-houses, would seem to interfere with commerce and infringe a little on the freedom of intercourse.
    The case of Morris v. The City of Boston, (4 Metcalf, 283,) arose under the pauper laws of Massachusetts. The tax was on the master, owner, consignee or agent. The vessel was a foreign one, and from a foreign port. This case offers a complete answer to the argument of the counsel for the plaintiff. The tax was on the master, &c., but in answer to objections which would have affected its constitutionality, the court assert in the most formal manner, that the decision rests on the inalienable necessary pauper right. “We think,” say they, “ it is plain, that if any such large sum were exacted of passengers, it would indicate the real purpose and design of the law to be to raise revenue, and not in good faith to carry into effect a useful and beneficent poor law; useful and beneficent to such aliens themselves; therefore, that it would be in contravention of the constitution and laws of the United States, and void. But to apply this principle to the construction of an act of State legislation, it must be apparent to the court, that the real purpose was distinct from the ostensible one.”
    “The constitution of the United States gives the principle which must govern all such cases. The law of the Union first has its full operation ; and so much only of the State law, as is not abrogated by the effect of the supreme law, remains. This principle destroys all incongruities, and is the only legitimate test of which such cases are susceptible. The right given by a law of the Union to navigate from State to State, cannot be abridged or restricted by a State law ; and whenever a case of navigation between this State and another takes place, the State grant is extinct, as an impediment or objection to such a voyage. 3 Cowen, 716, 719.
    There is no penalty for the non-collection of this tax. The tax does not purport to be imposed under the poor law or sanitary power. It is to support a hospital which had been supported for years from State resources, and from funds which still may be made available. No necessity exists, or is pretended to exist for it. It is a mere experiment upon the travelling public, and upon the constitution. Judge Story, in 1837, looked forward with alarm to this state of things, and in his memorable dissenting opinion in the case of The City of New Yo7-k v. Miln, in which he had the concurrence of the late Chief Justice Marshall, said : “ If this act be constitutional to this extent, it will justify the States in regulating, controlling, and in effect, interdicting the transportation of passengers from one State to another in steamboats and packets. They may levy a tax upon all such passengers; they may require bonds from the master, that no such passengers shall become chargeable to the State; they may require such passengers to give bonds that they shall not become so chargeable; they may authorize the immediate removal of such passengers back to the place from which they came. These would be most burthensome and inconvenient regulations respecting passengers, and would entirely defeat the object of Congress in licensing the trade or business. And yet, if the argument which we have heard be well founded, it is a power strictly within the authority of the States, and may be exerted at the pleasure of all or any of them, to the ruin and perhaps annihilation of our passenger navigation. It is no answer to the objection to say, that the States will have too much wisdom and prudence to exercise the authority to so great an extent. Laws were actually passed of a retaliatory nature, by the States of New York, New Jersey and Connecticut, during the steamboat controversy, which threatened the safety and security of the Union ; and demonstrated the necessity, that the power to regulate com-' merce among the States should be exclusive in the Union, in order to prevent the most injurious restraints upon it.
    
      “ Such is a brief view of the grounds upon which myjudgment is, that the act of New York is unconstitutional and void. In this opinion, I have the consolation to know, that ] had the entire concurrence, upon the same grounds, of that same great constitutional jurist, the late Mr. Chief Justice Marshall. Having heard the former arguments, his deliberate opinion was, that the act of New York was unconstitutional; and that the present case fell directly within the principles established in the case of Gibbons v. Ogden, 9 Wheat. 1, and Brown v. The State of Maryland, 12 Wheat. 419.” 11 Peters, 159. •
    It is obvious, that if the right to tax passengers coming from another State of this Union on the business of commerce, in a licensed coasting vessel, be vested in a State, which is most strenuously denied, yet the forced collection of this tax on board the vessel, on the part of the captain, which this law purports to impose as a duty, is a direct and palpable interference with the paramount right of regulating commerce which is vested in Congress alone, and therefore void and of no effect.
   Bullard, J.

A re-hearing was given in this case, and it has been again elaborately argued in writing. We have kept it under advisement for a considerable length of time, and maturely considered the authorities relied on.

Before announcing the result of our re-examination of the subject, it is proper to state precisely what our first decision was, as it seems to have been misunderstood. It will be seen then, on recurring to the opinion first pronounced, that we held : Firs*-, That the act of the Legislature imposing a tax upon passengers arriving in New Orleans from beyond the limits of this State, for the support of the Charity Hospital, is not, in the opinion of this court, repugnant to the constitution and laws of the United States. Secondly, That although the captain of the vessel is authorized to collect the tax, and is clothed with power to coerce its payment, and to that extent may be considered as a State officer, yet as the Legislature has imposed no penalty in case of his neglecting or refusing to make the collection, and that part of the statute is without a sanction, the courts cannot supply such penalty. It was upon this last ground alone, that under the plea of the general denial, we held, that the master is not liable to pay the tax, as a penalty for not having complied with the requirements of the statute, by collecting it from his passengers.

The counsel for the plaintiff has called our attention to the laws of New York and Massachusetts of an analogous character, to the decisions of the Supreme Court of the United States in the case of The City of New York v. Miln, (11 Peters, 102,) and of the Supreme Court of Massachusetts in the case of Norris v. The City of Boston, affirming the constitutionality of those laws.

The statute of New York, out of which arose the first of these cases, authorized the Health Commissioner to demand, and, in case of refusal or neglect to pay, to sue for-and recover,from the master of every vessel from a foreign port, for himself and each cabin passenger, one dollar and fifty cents; for each steerage passenger, mate, sailor, or mariner, one dollar; and from the master of each coasting vessel, for each person on board, twenty-five cents, with certain restrictions as to coasting vessels from the adjoining States. See 1 Revised Statutes, 436, 437. Another section of the same law required every master of a' coasting vessel to pay to the Health Commissioner, at his office in the city of New York, within twenty-four hours after his arrival, such hospital moneys as might be due by him under the law ; and “every master for each omission of such duty, shall forfeit the sum of one hundred dollars.”

The Massachusetts statute provided, among other things, that no alien passengers should be permitted to land, until the master, owner, or consignee shall pay to the boarding officer, two dollars for each passenger so landing. Norris, the plaintiff, having paid the tax for nineteen passengers, who had arrived on board of his vessel, which sum went into the treasury of the city of Boston in pursuance of the statute, sued the city to recover it back, on the ground, that the statute was repugnant to the constitution and laws of the United States. Both these decisions affirm the constitutional validity of those 'enactments, even where the tax is imposed upon the master, owner, or consignee. But they do not touch the only question, upon which the case now before us turned, to wit, whether the master, who is not taxed, be legally bound to make the collection, under the penalty of paying the tax himself. The statutes of those two States are totally different from ours. In New York and Massachusetts, the master, owner, or consignee is the tax payer, and the tax varies with the number of passengers or persons on board. In Louisiana it is the passengers alone who are taxed, and the master is made the collector. In performing that duty under the statute, the master would become either the gratuitous mandatary of the Charity Hospital, (which could not be without his consent,) or a State officer, pro hac vice. Admitting that the State may impose duties upon any class of its citizens, as contended by the plaintiff’s counsel, and even upon foreign captains of merchant vessels the moment they arrive in this port, the difficulty is in coercing their obedience, where the law has no sanction, and disobedience is threatened with no definite punishment or penalty. If disobedience in such cases were even declared to be a crime, the courts cannot declare what shall be the punishment. The numerous class of cases to which the plaintiff’s counsel refers us, will be found in most instances, to consist of duties imposed either under penalties declared by law, or services to be rendered, ex officio, or in consequence of holding some office. In neither case is there any difficulty. The penalty may be recovered, or the officer held to account for his neglect of duty, because the exercise of the office implies his consent to perform such ex officio duties. Such is the case with clerks and sheriffs in relation to the collection of taxes on suits, and of executors as to the collection, or rather the retaining of the tax on legacies to foreigners, <fcc. But these officers may, at any time, resign ; and thus relieve themselves. Even supposing that the neglect to perform duties required by this statute, although not punishable by a definite penalty, would give rise to an action in damages in favor of the person or institution for whose benefit they were required, yet it does not follow, that the damages would be necessarily equal to the tax on all the passengers. Some may be unable to pay ; others may have no baggage upon which the captain could lay his hands, as the only means of coercion which the statute gives him. The damages could only be commensurate with the injury sustained by the neglect of the captain ; and that injury must be shown by the party complaining. The passenger owes the tax, and it may be recovered of him by direct action, and is not necessarily lost, because the master of the vessel was either unable to collect it, or unwilling to embroil himself with his passengers, and render himself odious by resorting to a summary seizure of their bag-

first opinion, we expressed a doubt whether the statute constitutional, if it had been obligatory on the masters of vessels navigating under a license from the custom-house, to pay the tax in default of collecting it of his passengers. The Supreme Court of the United States was not unanimous upon that question, in the case of New York v. Miln. One very able and learned Judge dissented, and stated that he had authority to say that Chief Justice Marshall concurred in opinion with him. Under such circumstances we might well entertain some doubt; but upon a question of the constitutional authority of Congress, and the consequent restriction upon the power of the State Legislatures, we regard a solemn judgment of that high tribunal as settling the lavnJS N[,n our rita be won

The judgment first pronounced must remain undisturbed.  