
    Smith v. Marston.
    "Where a city (a seaport) was incorporated in the usual form, and, being so incorporated, imposed a tax, under a special law, on all passengers arriving at said port from a foreign port, and also imposed a penalty on the captain, &c.. of any vessel arriving from a foreign port for failing to report a list oi his passengers and pay the tax, in a suit by an individual for the use of the city against the captain of a vessel arriving from tho port of New Orleans for the tax and for the penalty for failing to make a report of Ms list of passengers: Held, 1st, that the suit should llave been brought in the name of ihe city; 2d, that there was no misjoinder of actions; 3d, that it was competent for the Congress of the Republic to authorize a municipal corporation to impose such a tax; 4th, Unit New Orleans is not now a foreign port.
    This court will not consider as conclusive authority tho cases of Smith v. Turner, and Norris V. The City of Boston, decided at the December Term, 1818, of the Supreme Court of the United States, upon the subject of the power of the States to impose certain regulations, &c., upon the introduction of passengers.
    Appeal from Galveston. This suit was instituted before a justice of the peace in the name of Marston, the appellee, for the use of the mayor, aldermen, and inhabitants of the city of Galveston, to recover certain sums of money from the appellant, captain of the steamer Palmetto, for his non-compliance with the following ordinance of the said corporation:
    “ Section 1st. Be it ordained by the mayor and aldermen of the city of Galveston in council convened, That from and after the passage of this ordinance all masters, owners, or clerks of any ship, steamboat, or other vessel arriving at tho port of Galveston from any port beyond the limits of the State of Texas shall, within twenty-four hours after the arrival of such ship, steamboat, or other vessel, pay to flic city collector the sum of one dollar for each and every cahin, steerage, or dock passenger over the age of fifteen years.
    Section 2d. Be it further ordained, Thatthe master, owner, or clerk of any ship, steamboat, or other vessel arriving in this port from any port beyond the limits of the State of Texas shall, within twenty-four hours after such arrival, deposit in the mayor’s office a true list, verified tinder oath, of all passengers arriving oil board of such ship, steamboat, or other vessel.
    “Section 3d. Be it further ordained, That if any master, owner, or clerk of any ship, steamboat, or other vessel, or persons having charge of the same, arriving at this port from any port beyond the limits of the State of Texas shall refuse or neglect to comply with the foregoing provisions of this ordinance, he or they shall upon conviction be liable to a fine of not less than ten dollars nor more than one hundred dollars, to be recovered before any court having’ jurisdiction of the same.
    “ Section 4th. Be it further ordained, That all moneys collected under the provisions of this ordinance shall be, and the same are hereby, appropriated solely and exclusively to the use and benefit of the city hospital, and for no other purpose whatever.”
    The action was brought for the tax under the first and for the fine under the third section of the above ordinance. The voyage was from the port of New Orleans, in the State of Louisiana, and the defendant failed and refused upon his arrival at Galveston to furnish said list as required or to pay the tax of one dollar per passenger.
    The defendant excepted to the proceeding in the court of the justice of the peace. The exception being overruled, judgment was rendered against him, from which he appealed to the District Court. In the District Court he demurred and assigned the following causes of demurrer:
    1st. That Daniel Marston had no right under the charter of the corporation of the city of Galveston to bring the suit.
    2d. That the writ and judgment of the court below showed a misjoinder of actions upon which no valid judgment could be rendered or suit maintained.
    3d. That the Congress of the Eepublie of Texas, under the Constitution of the said Republic, could not delegate to the corporation of the city of Galveston to pass by-laws or ordinances touching the regulation of commerce or the levy of a hospital tax, and that so much of the charter of said corporation as gives them power and annexes a penalty for non-compliance is unconstitutional and void. .
    4th. That the right given under the charter applies only to passengers coming from a foreign port and not from ports in the United States.
    The District Conrt overruled the defendant’s demurrer, and, a jury being waived by the parties, the court gave judgment in favor of the plaintiff against the defendant for the sum of seventy-one dollars, both tax and fine, with all costs about this suit expended. The defendant appealed and assigned the same grounds of error which lie had taken in support of his demurrer in the court below, with this addilional one: that the ordinance of the corporation imposing the tax on passengers was in violation of the Constitution of the United States.
    Merriman, for appellant.
    T. The appellee had no right, under the charter of the corporation of the city of Galveston, to bring the suit. (1 Bl. Com., 475 ; 2 Kent Com., 268; Acts of 1840, p. 26G, sec. 1.)
    IT. The writ and judgment of the court below showed a misjoinder of actions, upon which no valid judgment could be rendered or suit maintained. (1 Chit. PI., 231, 23G.)
    III. The Congress of the Republic of Texas, under the Constitution of said Republic, could not delegate to the corporation of the oily of Galveslon the power to pass by-laws or ordinances touching the regulation of commerce or the levy of a hospilal tax, and so much of (.lie charter as gives this power and annexes a penalty for non-compliance is unconstitutional and void. For charter, see acts of 1S40, p. 26G; Id.. 1S44, p. 87; Id., 1845, p. 67. The Constitution of the Republic gave Congress the same power to regulate commerce, &c., as is granted by the Constitution of the United States to their Congress. (Gibbous v. Ogden, 0 Wheat. B., 1; Broom v. The State of Maryland, 12 Wheat., 419; City of New York v. Miln, 11 Pet. B., 102.)
    IY. The right given under the charter applies only to passengers coming from foreign ports and not from ports in the United States. (Buckner v. Pin-ley & Vaii"Lear, 2 Pet. B., 5S6.) New Orleans is not a foreign port.
    V. The imposition of the tax, and the other requirements of the ordinance, being merely auxiliary thereto, conflict with the Constitution of the United States. (Smith v. Turner, and Norris v. The City of Boston, decided by the Supreme Court of the United States at the December Term, 1848.)
   Lipscomb, J.

To dispose of the first assignment it will be necessary to refer to the act of the Congress of Texas incorporating the city of Galveston. (Acts 1840. p. 266.) The first section is as follows : “ That all the free white inhabitants of the city of Galveston shall continue to be a body politic and corporate, by the name of the Mayor, Aldermen, and Inhabitants of the City of Galveston; and by that name they and their successors shall have, exorcise, and enjoy all the rights, immunities, powers, privileges, and franchises, and shall be subject to all the duties and obligations now appertaining and incumbent on said city as a corporation, or incumbent upon the inhabitants or officers thereof; and may ordain and establish such acts, laws, ordinances, and regulations, not inconsistent with the Constitution or laws of this Republic as shall be needful to the good order of said body politic; and under the same shall be known in law and bo capable of suing1 and being sued, and of defending in all courts and in all actions and matters whatever,” &c. It is not material to cite the remaining part of the charter. The name and style of the corporation .is here fixed and .designated, b}r which it shall be known', and by which it is to discharge and execute all the obligations and powers conferred on it, and by which it is to be known in law, and to sue and to defend. It would therefore seem to be too plain to admit of a doubt that a suit brought for the violation of its ordinances could only be brought in its own name and not in any other, either of a real or fictitious person.

On the second ground taken it is not necessary to say much. If the action had been in the name of the corporation to which different liabilities had accrued from the same person, under our system of practice there is no sound objection to tlieir being both sued for in one and the same action. It is a more convenient and loss expensive mode of proceeding, and would have admitted as full and ample defense as could have been made had different suits been brought for each cause of action.

The third assignment, that the charter, if it authorized such tax to he imposed and collected, was so far repugnant to the Constitution of the Republic of Texas, is not believed to be well taken. We can find nothing, either in express terms or by necessary implication, in the Constitution of the Republic that would prohibit the Congress from granting such power.

To decide on the sufficiency of the fourth assignment, it is necessary to refer to the act of Congress of Texas of 1844, amending the charter of the city of Galveston. The 17th section of this act provides “ that the mayor and aldermen of the city of Galveston shall have power, for the purpose of establishing and maintaining a hospital, to levy and collect from the masters and owners or consignees of any vessel, steamboat, or other craft arriving in the port of Galveston from any foreign port the sum of one dollar for each passenger.”

It will he borne in mind that at the date of the enactment of the amendment to the charter of the city of Galveston the Congress of Texas was legislating for an independent Republic; that at that time the ports of the United States of America were foreign, and that no question could then have arisen as to authority to pass a law for the collection of taxes on passengers arriving from foreign ports. The act, however, in its terms expressly limits the collection of such taxes to passengers arriving at foreign ports. New Orleans, in the State of Louisiana, was then a foreign port, and came within the letter and spirit of the act. Since that time a great change has taken place. New Orleans is not now, as to her relations with Texas, a foreign port.

The Republic of Texas is no more; and all such laws as are repugnant to the Constitution of the United States, enacted by the Republic, would have to yield to the influence of that instrument, but such as are not repugnant thereto Texas, as an independent State of the confederacy framed by that Constitution, may claim to be still valid and in full force and effect until repealed or modified by her State Legislature. The question would then arise, Is the authority conferred by tile act amending the charter of tile city of Galveston in 1844 repugnant to the Constitution of the United States? To this question, until very recently, I would have thought it could be answered on the authority of the Constitution itself and on solemn adjudications in the negative. I should have said that it would be perfectly competent for the Legislature o~ Texas to have passed precisely such an act as the one under consideration without encroaching on the provisions and powers delegated to the Federal Government by the Constitution of the United States; and that consequently this act of the Congress of the Republic was left in full force, unimpaired by the annexation of the State of Texas to the United States. But the decisions of the Supreme Court of the United States at the December Term, 1848, in the two cases of Smith v. Turner, and Norris v. The City of Boston, would seem to go the whole length of taking from the States the right to pass such laws, and to declare that when so passed they are unconstitutional and void. That court being the tribunal of the last resort on such questions, its decision for the time will perhaps command submission., It is not, however, likely, when so decided by a divided court, with a majorit of only one and the great weight of judi~ cial learning against it, that it will receive the general approbation of either the bar or the beneh~. By many it will be regarded as a most thiugerous audi au alarming encroachment upon the constitutional rights of the States.

We are, however, satisfied that the demurrer to the parties was well taken and ought to have been sustained ; and for this reason we would reverse the case hut from the fact that it is an appeal front a justice of the peace, and we have held in the case of Titus v. Latimer at this term that an appeal will not lie from a justice of the peace to the District Court tinder our Constitution, All that we can do is to dismiss the case from this court.

Hemphill, Ch. J., and Wheeler, J. The question involved in this cause was elaborately investigated in the causes of Smith v. Turner, and Norris v. The City of Boston, decided in the Supreme Court of the United States, and the learned judges of that court were divided in their opinions, the causes being decided by a majority of only one. The question in that court was of the first impression; and so great Was the diversity of opinion that we cannot until further adjudications regard the decisions as conclusive authority.

Reversed and dismissed.  