
    
      Samuel Alexander, Harbor Master of Charleston, v. The Wilmington and Raleigh Rail Road Company.
    
    The duty imposed by the Ordinance of the City Council of Charleston which provides that “ Steam Packets and other vessels trading steadily, and performing regular successive voyages,” to this port, “from the adjoining States of North Carolina and Georgia,” “ shall pay to the harbor master one cent per ton, once every three months, or every quarter,” is a tawiage duty; and the Ordinance is in violation of the 10th sec. of the 1st article of the Constitution of the United States, by which it is ordained that “no State shall, without the consent of Congress, lay any duty on tonnage.”
    
      Before Frost, J. at Charleston, Fall Term, 1847.
    This was an action brought to recover certain duties, taxes, or fees, imposed by ordinances of the City Council of Charleston, passed on 2d September, 1840, and 17th May, 1841. See digest of City Laws, pages 104 — 112.
    Upon the trial of the case, the jury found the following
    SPECIAL VERDICT.
    “We find that the City Council of Charleston are a body politic and corporate, and that by an Act of General Assembly of this State, passed the 13th day of August, 1783, entitled “ An Act to Incorporate Charleston,” they were vested with full power and authority, from time to time, to make and establish such by-laws, rules, and ordinances, respecting the harbor, streets, lanes, and so forth; and, in general, every other by-law and regulation that shall appear to them requisite and necessary, for the security, welfare, and convenience of the City of Charleston, or for preserving peace, order, and good government within the same. And that they are also authorised to appoint a recorder, harbor master, fire masters, constables, and all other such officers, (affixing the salaries and fees of such officers, respectively,) as shall appear to them requisite and necessary for carrying into effectual execution all the by-laws, rules, and ordinances, they may make for the good order and government of the said city, and the persons residing therein : Provided, always, that nothing in said Act contained shall authorise the City Council to lay a duty of more than three pence per ton on any shipping in the harbor, nor shall they make any by-laws repugnant to the law of the land, or inconsistent with treaties made with foreign nations; and provided, also, that all the by-laws, rules, and ordinances they may make, shall, at all times, be subject to the revisal, alteration, and repeal of the Legislature.
    “We also find that the said City Council of Charleston, by an ordinance passed the second day of September, in the year 1840, entitled “An Oí dinance to establish regulations for the port of Charleston, defining the duties of the harbor master, and concerning passengers, in vessels, arriving at the said port,” by which ordinance the office of harbor master of Charleston was established, his duties prescribed in relation to vessels arriving at and departing from the port of Charleston, and his fees and compensation for the same, in certain cases arranged. That the said City Council of Charleston, by their certain other ordinance, ratified in due form, on the 17th day of May, 1841, entitled1»11 An Ordinance to amend an Ordinance entitled ‘An Ordinance to establish regulations for the port of Charleston, defining the duties of the harbor master, and concerning passengers, in vessels, arriving at the said port,’ ” did, among other things, ordain as follows, to wit: “All vessels of the United States, of whatsoever kind or description, (excepting all national armed vessels or cruisers, and vessels owned in and belonging to this State, and steadily plying or trading within the limits of the same,) and the foreign vessels which are permitted to enter * on the same terms as vessels of the United States, which shall, from and after the passing of this ordinance, arrive in the port of Charleston, and come to anchor in any part of the harbor, within one mile of the city, or haul to any wharf, or dock, shall pay to the harbor master, every voyage, one cent and a half per ton, according to the tonnage in the ves-sePs register or papers; and excepting also all steam packets, anq other vessels trading steadily, and performing regular, successive voyages, from the adjoining States of North Caro-jjna anq Georgia: all of which vessels shall pay the harbor master one cent per ton, once in every three months, or every quarter; all other foreign vessels, not entering upon the same terms as vessels of the United States, shall pay three cents per ton. The above fees to be paid every voyage by the master, owner, or consignee of any ship or vessel subject to the same, to the harbor master, at his office, within forty-eight hours after the arrival of such ship or vessel; and in default of payment thereof, the same having been first duly demanded, such master, owner, or consignee, shall pay double the amount of such fees, to be sued for and recovered in the name of the harbor master, in any Court having cognizance thereof.”
    “We further find that the Wilmington and Raleigh Rail Road Companyare an incorporated company, chartered by the State of North Carolina, and engaged in transporting the mails of the United States, and also passengers, daily, to and fro, by rail road and steam vessels, from Weldon, in North Carolina, to Charleston, in South Carolina. That they are the owners of four steam vessels, called the Gladiator, theC. Vanderbilt, the Gov. Dudley, and the Wilmington, which trade steadily and perform regular, successive voyages, daily, from Wilmington, North Carolina, to Charleston, South Carolina, with the mails and passengers, but without freight or merchandize, except small hand packages, for which no bills of lading are given, they being at the owners’s risk exclusively; and that each of the said steamers is furnished with a coasting license from the Custom House, according to the Acts of Congiess; and their officers, and two-thirds of the crew of each steamer, are citizens of the United States.
    “ We further find that th* tonnage of the steam packet Gladiator is three hundred and seventy-nine tons; and that the said steam packet did, between the 6th day of July, 1841, and the 20th day of October, 1846, trade steadily, and perform regular successive voyages from the port of Wilmington, in the adjoining State of North Carolina, to Charleston, in the State of South Carolina, for the period of sixty-eight months, or seventeen quarters of a year. That the tonnage of the steam packet C. Vanderbilt is three hundred and forty- ■ six tons; and that she did, between the aforesaid points of time, trade steadily, and perform regular successive voyages as aforesaid, for the period of sixty months, or fifteen quarters of a year. That the tonnage of the steam packet Gov. Dudley is four hundred and eight tons; and that she did, between the points of time aforesaid, trade steadily, and perform regular successive voyages as aforesaid, for the term of seventy-two months, or eighteen quarters of a year. And that the tonnage of the steam packet Wilmington is hundred and five tons ; and that she did, between the points1 of time aforesaid, trade steadily, and perform regular successive voyages as aforesaid, for the term of fiity-six months, or fourteen quarters of a year.
    “ We further find that Samuel Alexander, the plaintiff’ is harbor master of Charleston, and has been, continuously, from the 1st day of July, 1841.
    “ If, upon these facts, the Court are of opinion that the plaintiff is entitled to recover, we find for the plaintiff the sum of two hundred and forty-six 47-100 dollars, with interest on the amount, payable each quarter, respectively, as stated in the account annexed to the declaration ; if otherwise, then we find for the defendant. L. Bowie, Foreman.
    
    19th November, 1847.
    Whereupon his Honor, Judge Frost, made the following order, viz: “ Ordered, that the postea be delivered to the plaintiff, with interest on the amouut stated in the account annexed to the declaration, from the end of each quarter, respectively.”
    The defendants appealed from the said order and decision, and moved in arrest of judgment, or for a new trial, upon the following grounds:
    1. That the duty or tax, imposed by the aforesaid ordinances of the City Council of Charleston, is, in fact and in substantive effect, a tonnage duty.
    2. That by the 10th section of 1st article of the Constitution of the U. States, enumerating the limitation of the powers of the individual States, it is ordained, “ that no State shall, without the consent of Congress, lay any duty of tonnage.” That Congress has never consented to these ordinances, nor to give the State of South Carolina the right to impose a tonnage duty, and consequently the City Council could have no such right, and their ordinances are void.
    3. That if Congress had consented to delegate their power to impose a duty on tonnage, to the State of South Carolina, the State could not delegate to the City Council such its delegated powers.
    4. That the aforesaid city ordinances are regulations affecting or imposing restrictions on commerce with foreign nations, and “ among the several States.” Whereas, by the 8th section of the 1st article of the Constitution of the United States, the power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes, is exclusively vested in Congress, and the said ordinances are, therefore, void.
    5. That the said city ordinances cannot be sustained as inspection laws, because the object of inspection laws is to iniprove the quality of articles produced by the labor of a country, to fit them for exportation or domestic use; but the steamers between North and South Carolina, being employed as agents of the government, for the transportation of the mail, and incidentally of passengers, require no inspection laws, other than that of the United States, and, therefore, the tax on the vessels themselves is, essentially, a tonnage duty, and, as such, unconstitutional and void.
    6. That tonnage duties are, from policy and expediency, abandoned by the United States, and none are collected by the government, except from the Spanish ports of the West Indies; and the Act of Congress of May, 1830, repeals “ all tonnage duties on ships of the United States, of which the officers and two-thirds of the crew are citizens.”
    7. Because the Congress of the United States has expressed its disapprobation of laws similar to the aforesaid city ordinances, in an Act of Congress passed 19th March, 1838, (page 19,) entitled “ An Act to continue in forcean Act therein mentioned, relating to the port of Baltimore,” wherein it is expressly “provided that nothing therein contained shall authorize the demand of a duty of tonnage on vessels propelled by steam, employed in the transportation of passengers.”
    8. That the plaintiff was not entitled to interest upon the quarterly assessments.
    
      II. DeSaussure and Petigru, for the motion.
    
      Porter, City Attorney, contra.
    This case, involving a constitutional question, was referred to the Court of Errors.
   O’Neall, J.

delivered the opinion of the Court.

The second part of the 10th section, 1st article of the Constitution of the United States, declares “ no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for excuting its inspection laws, and the neat produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United Sta-tes, and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

The ordinance of the City Council, set out in the special verdict, inter alia provides that steam packets and other vessels trading steadily, and performing regular successive voyages' from the adjoining States of North Carolina and Georgia,” “ shall pay the harbor master one cent per ton, once every three months, or every quarter.” The question made is, is this a tonnage duty under the Act of Congress 1 '

On referring to Bouvier’s Law Dictionary, I find that after giving the general definition of tonnage, “the capacity of a ship or vessel,” he adds, “ the duties paid on the tonnage of a ship or vessel, are also called tonnage.” He defines duties by saying it is “ nearly equivalent to taxes, embracing all impositions or charges, levied on persons or things.” Construing the ordinance by these definitions, it would seem to be plain that it has undertaken (without the consent of Congress) to impose a duty of tonnage on the steam packets of the defendants. But it is said the imposition of tonnage, in this case, is merely a mode by which the plaintiff is to ascertain his fees ; and it is so called in the ordinance; “ the above fees” is its language. I should think there would be great force in this view, if it were so that the harbor master rendered any services for the defendants. If he assigned their packets a birth at any of the wharves, or did any other personal service for them, I should be disposed to say that measuring the value of his services by the tonnage of the ship, would not make the law allowing him compensation, unconstitutional. For in such a case, although the letter of the constitution might be violated, yet its true meaning would be untouched. But here the special verdict does not find that the plaintiff rendered any service at all to ihe defendants, and it was stated at the bar, and not contradicted, that the defendants have their own wharf, and that the plaintiff has no more to do with their steamers, in the harbor of Charleston, than he has with them when at Wilmington.

The notion that it is not a tonnage duty, because it does not go into the public coffers, cannot be sustained. What is done with the money cannot affect the question. Is this a tax or charge incurred by entering the harbor of Charleston 1 Every one is obliged to say yes. For it is to be paid without any regard to any thing else than the steam packets coming to and entering the port. The distinction between a tax or duty, and fees or charges, is, that the former is imposed by the sovereign authority, without any regard to a corresponding and equivalent benefit or advantage: the latter proceeds upon the quid pro quo, and unless service be rendered nothing is to be paid. The only duty of tonnage levied by the authority of this State, since the constitution, was for the benefit of the Marine Hospital, and that was by the consent of Congress. This shews that the end to which the money to be collected is to be applied, cannot affect the character of the law. For there public charity had the benefit of it.

But it is not clear that the imposition here does not indirectly avail the public. Who is the harbor master ? He is an officer of the corporation exercising pro hac vice, under ^ the authority of the State, the legislative power. He is to be /paid for his services by the appointing power; and if it, in-stea(j 0f ¿tawing from its own funds for that purpose, chooses to relieve them by imposing the burden on the defendants, is not that the same thing as if the results of the charges arising under this ordinance, had been directed to be collected and paid into the city treasury ? It seems to me to be so ; and, certainly, if the provision had been direct for the collection and payment of tonnage to the City Council, no one could doubt that the constitution would be plainly violated.

2 Spears, 769.

The discrimination made in this ordinance, between vessels owned in and belonging to this State, and steadily plying and trading within the same, and vessels trading and performing regular successive voyages from the adjoining States of North Carolina aud Georgia, is liable to the very grave objection arising'under the 5th part of the 9th section of the 1st article of the Constitution of the United States, as recognized and enforced in Chapman v. Miller. For, certainly, it cannot be said this is not giving “ a preference to the ports of one State over those of another,” nor that “ vessels bound to or from one State” are not required to pay “ duties in another.”

It is, therefore, ordered that the judgment of the Judge below, awarding the postea on the special verdict to the plaintiff, be reversed, and that the postea be awarded to defendants, who have leave to enter up judgment on the special verdict.

Richardson, J. — Evans, J.- — Wardlaw, J. — Withers, J. — Johnston, Ch. — Donkin, Ch. — Caldwell, Ch. — and Dargan, Ch. — concurred.

Motion granted.  