18 F. Cas. 412 | U.S. Circuit Court for the District of Minnesota | 1875
The question involved here, aside from that of voluntary payment. is: Does this ordinance of the city of St. Paul conflict with that , clause of the constitution of the United States which forbids a state to levy any duty of tonnage without tire consent of congress? In the case of Cannon v. City of New Orleans, 20 Wall. [87 U. S.] 577, the United States supreme court laid down a rule of decision which covers this case. The New Orleans ordinance charged a rate per ton “on all steamboats which shall moor or land in any part of the port.” The ordinance of the defendant fixes the rates per ton on all vessels which may land or anchor at or in front of any landing within the city limits: provided, no boat shall pay more than twenty dollars for each trip. The latter ordinance fixes the tax upon a vessel, whether at a landing or anchored in the middle of a stream in front of a landing, and imposes the tax for the trip. It is, therefore, not a charge for the use of a wharf, but for the privilege of arriving at and departing from the port. The supreme court said, “Whatever more general or more limited view may be entertained of the true meaning of this clause of the constitution, it is perfectly clear that a duty or tax or burden imposed under the authority of the state, which is, by the law imposing it, to be measured by the capacity of the vessel, and is in its essence a contribution claimed for the privilege of arriving and departing from a port of the United States, is within the prohibition.” The ordinance, by its terms, imposes the tax upon every vessel that stops in the port in front of any landing.
The testimony is conclusive that the payment was not made voluntarily. The following notice was served upon the defendant at the time the tax imposed was enforced, and under an arrangement made between the city attorney and the secretary of the company, it was to continue during the year 1870, and was renewed and continued during the year 1871.
“(Name of steamboat.) Wharfmaster, etc. Sir: 1'ou and the officers of the city under whose direction you act, are hereby notified that the wharfage this day paid to the city by the above named steamboat is paid under protest, and all that may hereafter be paid is here protested against, and the payment is now made and will hereafter be made without waiving the right of the owners of said steamboat to recover the same from the city by an action at law. (Signed,) -, Clerk of Steamboat.”
The supreme court of the United States, in the Tonnage Tax Case, 12 Wall. [79 U. S.] 209, said . . . “If the tax is illegal . . and paid . . under protest” or with notice that the party intends to bring “a suit to test the validity of the tax, he may recover it back in such an action.” The plaintiff occupies the position defined by the court, and is entitled to recover. Judgment will be entered in its favor and against the defendant for the sum of five thousand nine hundred and seventy-eight dollars and ninety-seven cents, with costs. (Mr. Justice MILLER, although not sitting in this case, stated his approval of this decision.) Judgment accordingly.
