
    NOVEMBER TERM, 1844.
    William Harrison v. The Mayor and Council of Vicksburg.
    The Mayor and Council of the city of Vicksburg have the right, under the city charter, to pass an ordinance authorizing the levy of an ad valorem tax on the sales of produce] by'flat-boat traders within the iimits of the city.
    Such an ordinance is not inconsistent with the general laws of the State.
    Laws which merely impose a tax on the sales of merchandise are not in restraint of trade.
    The tax imposed by the city of Vicksburg on the sales of produce imported by the citizens of other States, and sold within the limits of the city, is not “ an impost or duty,” within the meaning of the Constitution of the United States.
    When a citizen of Ohio comes into this State, and makes sales of his merchandise here, he must do so subject to the laws of this State.
    This was a petition to the Circuit Court of Warren county, by-William Harrison, for a writ of prohibition. The petition sets forth on oath that William Harrison is a citizen of the State of Ohio; that being the owner of a flat-boat loaded with flour, whiskey, pork, and bacon, exported from the State of Ohio, he landed at the port of Vicksburg and proceeded to dispose of his cargo, in the shape in which it was imported, claiming the right to do so under the Constitution of the United States and the acts of Congress, without the payment of any tax, impost, or duty laid by authority of the legislature of the State of Mississippi, or any corporation in said State acting by its own or the authority of the State, without procuring any license therefor ; that on the 6th of May, 1841, a warrant issued from the Mayor’s Court of said city of Vicksburg, to recover of him the sum of fifty dollars for a violation of the 11th section of an ordinance of said city requiring “ an ad valorem tax to be levied on all flat-boats, keel-boats, barges and other water-craft, wherein goods, wares, or merchandise are or may be sold by retail within the limits thereof and on the 12th day of the same month, a judgment rendered against him in the said Mayor’s Court for fifty dollars and costs of suit; and that an execution had been issued thereon. The petition sets out the said ordinance in extenso, and prays that a writ of prohibition issue to the mayor and council of said city, commanding them not to proceed to enforce said ordinance, or any part thereof, against the petitioner, because,
    1st. Said ordinance is not warranted by the charter of incorporation granted by the legislature of the State of Mississippi to the said mayor and council.
    2d. Said ordinance' is inconsistent with the general laws of the State of Mississippi.
    3d. Said ordinance is in restraint of trade, and in violation of the common rights of the citizen.
    4th. Said ordinance is in violation of the Constitution of the United States, in assuming to lay a duty or tax on produce imported by a citizen of another State of the Union, and sold in the shape in which it is imported.
    5th. Said ordinance is in violation of the acts of Congress.
    The Court overruled’ the motion of the petitioner for the writ of prohibition, and he has brought the case to this Court by writ of error.
    
      Jl. R. Depew and II. S. Foote, for plaintiff in error.
    The plaintiff in error moved the Court below, upon petition duly sworn to, for a writ of prohibition, to restrain the defendants in error from enforcing against him the 11th section of an ordinance of said mayor and council of the 9th April, A. D. 1840, which is as follows, to wit: Sec. 11. £C Be it further ordained, that if any owner, master, captain, or other person in charge of any flat-boat, keel-boat, or other water-praft, shall presume to sell any portion of the cargo in said boat contained within the city of Vicksburg, without having a license from the city «.clerk required by this ordinance, such person shall for every such offence be fined in the sum of fifty dollars, recoverable by warrant before the Mayor’s Court of Vicksburg.”
    The petition alleges on oath that the plaintiff in error was a citizen of Ohio ; that in May, 1841, he landed a’t the port of Vicksburg a flat-boat, loaded with flour, whiskey, pork, and bacon, which he exported from the State of Ohio, and proceeded to make sale of his cargo, in his boat, by selling the flour, whiskey, and pork, by the barrel, as it was imported, and the bacon being in bulk, in quantities to suit purchasers, claiming a right to do so by virtue of the Constitution of the United States and acts of Congress, without the payment of any tax, impost or duty imposed by the laws of Mississippi, or any corporation of their creation.
    Several grounds are assigned in the petition, as the basis on which the writ of prohibition was moved, which will require a full investigation by this Court, of the great questions, whether the Mississippi is a public navigable river, and whether its landings in incorporated cities in public ports established by acts of Congress, are free to all the citizens of the United States, and whether the citizens of the other States of the Union have a right, under the Constitution and laws of the United States, to import their surplus produce into this State, and make sale,of it in their boats lying in the public ports of this State, by the packages in the shape imported, without subjecting themselves to the imposition of taxes, duties, and héavy penalties by this State and its incorporated cities.
    All these questions, except the last, we have elaborarely discussed in our brief filed in the case of Morgan & Harrison, et al. v. Jl. B. Reading, No. 790, to which we refer the Court, for our views on that branch of this case.
    To show the unconstitutionality and illegality of the license tax and ad-valorem duty imposed, by the ordinance of the mayor and council of the city of Vicksburg, on the cargoes of all flat-boats, keel-boats, and other water-craft, landing in the port of Vicksburg, before the owners can make sale thereof in the shape in which their produce was imported, we refer the Court to the Constitution of the United States, article 1, sec. 10, clause 2, and the decision of the Supreme Court, of the United States in the case of Brown v. The State of Maryland,. 12 Wheat. 419, Peters’ Rep. (Bond) 554, as decisive of the latter question.
    We feel confident that the opinion of the Court below was erroneous, and should be reversed by this Court.
    We invite the particular attention of the Court in this case to our brief filed in the case of Morgan & Harrison v. Reading, which is an elaborate discussion of all the questions relating to the free navigation of the Mississippi river, and the free use of its banks in front of incorporated cities in public ports, for . all the purposes of navigation.
    
      
      William G. Thompson, for defendants in error.
    By an ordinance of the mayor and council, every master or owner of all flat-boats .and other water-craft is required to pay an ad valorem tax of forty' cents on every hundred dollar’s worth of goods, merchandise, produce, &c., which shall be sold within the limits of the city of Vicksburg, and also a tax of twenty cents, for the erection and support of a poor-house and hospital; and after the taxes shall have been paid, the master or owner of such flat-boats, and other water-craft is required to obtain a license from the city clerk, &c.
    By the 11th section of the ordinance, every master or owner of flat-boats, &c., who shall presume to sell without such license, is subjected to a fine of fifty dollars.
    The mayor and council were clearly authorized to pass this ordinance in relation to flat-boats, and other water-craft, by the 19th section of the Act incorporating the city of Vicksburg, passed in 1839, and subsequently, by the 12th section of the Act, amending the former Act, passed in 1840.
    But it is contended, that the ordinance and the sections of the Acts above referred to, are in violation of that provision of the Constitution, which declares that “ no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for its .inspection laws ; ” and of that provision which declares that Congress shall have power “to regulate commerce with foreign nations, among the several States, and with the Indian tribes.”
    And the attention of the Court is directed back to the case of Brown v. Maryland, 12 Wheat. 419, in support of this objection. In that case the Supreme Court of the United States decided, that the Act of the legislature of Maryland, which imposed a certain tax or duty on foreign articles of merchandise, introduced for sale into the city óf Baltimore, was unconstitutional. There is no analogy between that case and this. The ordinance of the city of Vicksburg has no reference to foreign articles of merchandise, or to “imports.”
    In regard to the provision of the Constitution, which gives to Congress the power to regulate commerce between the several States, it will be observed that the ordinance is not'pointed specially against the vendors of produce, &c. from the other States. It is wholly an internal regulation, and applies equally to the inhabitants of the city of Vicksburg, and to the citizens of the State of Mississippi generally, as to the citizens of the other States, and to the produce of the State of Mississippi, as to the produce of the other States. As well would it be contented that no tax could be imposed any where within this State .upon the business of retail merchants, auctioneers, &c., when the vender should chance to be a citizen of another State, having but a temporary residence here, or the articles of his merchandise should be the produce of another State, introduced here by him for sale.
   Mr. Chief Justice ShaRKev

delivered the opinion of the Court.

The mayor and council of Vicksburg passed an ordinance authorizing the levy of an ad valorem tax on the sales of produce by flatboat traders, within the limits of the city, and the mayor rendered judgment of fifty dollars against the plaintiff in error, for a violation of the ordinance. He applied to the Circuit Court for a prohibi-bition, which was refused, and he brought his writ of error.

The plaintiff in error resists the authority of the corporation, 1, for want of authority under the charter to pass such an ordinance ; 2, because - the ordinance is inconsistent with the general laws of the State ; 3, because it is in restraint of trade, and in violation of common right ; and 4, because the ordinance is in violation of the Constitution of the United States, because it authorizes the levy of a duty or tax on produce imported by a citizen of one State into another State.

The authority to pass such an ordinance is expressly given by the amendment to the charter, passed on the 22d of February, 1840. The 4th section declares, that the 27th section of the charter of 1839 shall be so amended as to authorize the mayor and council to levy an ad valorem tax upon flat-boats, barges, and other watercraft, wherein goods and merchandise are sold at retail. The State has an undoubted power to tax persons and property within its limits ; and it may delegate such power to a civil corporation, so far as it may be necessary for the good government of the corporation. 7 Leigh’s R. 120, Godden v. Crump.

The second objection is also untenable. We know of no law of the State which is contravened by the ordinance. On the contrary, it seems to be in strict accordance with the provisions of the charter. The legislature in giving the power to levy an ad valorem tax, gave necessarily the means necessary to accomplish the end. Hence it was competent for the corporate authorities to provide a penalty for a violation of the ordinance imposing the tax. The power to levy a tax would have been useléss, without the power of coercing payment.

In the next place, it is said to be an ordinance in restraint of trade, and therefore void. Laws which merely impose a tax on the sales or merchandise, are not in restraint of trade. The taxing power is one which is essential to the existence of the government, and the authority of a State to exercise it cannot be questioned, as regards all property within its jurisdiction, which was brought there to be used or disposed of, and we have already said that the State may confer this power on a civil corporation.

Lastly, is the ordinance in violation of the Constitution of the United States, because it authorizes the levy of a tax on produce imported by a citizen'of another State ? This tax is not “ an impost or duty ” within the meaning of the Constitution of the United States. It is probable that the prohibition in the 10th section of the first article of the Constitution has reference only to imports from a foreign country into the ports of the United States ; and even in reference to these Chief Justice Marshall remarked, that when the importer has so acted with the thing imported, that it has become mixed up and incorporated with the tfiass of property in the country, it has, perhaps, lost its distinctive character, as an import, and has become subject to the taxing power of the State. Brown v. State of Maryland, 12 Wheat. 419. This ordinance imposed no tax for the privilege of introducing the article, but a tax on the amount of sales. The power of a State to tax'the merchandise of its own citizens, has never been questioned, nor can it be. When a citizen of Ohio comes into this State, and makes sales of his merchandise here, there can be no reason why he should be exempted from the operation of State laws. This position, carried to its utmost extent, would defeat the power of the State over all sales of merchandise within its territory; it would only be necessary for the merchant to claim a residence in some other State, and the power of the State would be at an end.

Judgment affirmed.  