9 W. Va. 170 | W. Va. | 1876
“The plaintiff brought an action of trespass on the case in assumpsit, in the municipal court of Wheeling, against the defendant, on the thirteenth day of July, 1875. Afterwards, at August rules, 1875, plaintiff filed its declaration containing two special counts, and the common counts in assumpsit. The first and second counts are special. With the declaration, the plaintiff filed a bill of particulars of its claim against the defendant. The account is dated “July 12th — Taxes illegally collected for 1870, |120. do. 1871, $125. do. 1872. $125. do. 1873, $90. do. 1874, $60.” aggregating $520. At the November term, 1875, of said court, the defendant appeared to the action, and filed a demurrer to the declaration, and to each court thereof. The demurrer to the first and second counts was sustained, by the court and overruled as to the other counts. The defendant then plead the general issue of non-assumpsit, on which issue was joined. A jury was waived by consent, and the court heard and decided the cause in lieu of a jury, upon an agreed statement of facts filed in the case, which contained all the evidence offered. The court rendered judgment at the same term in favor of the defendant, on the facts agreed, and against the plaintiff, for the costs of suit. To the action of the court in rendering judgment for the defendant as aforesaid, the plaintiff excepted and tendered its bill of exceptions, which was signed, sealed and made a part of the record. The cause has been brought to this Court by supersedeas. For the sake
It appears by the bill of exceptions in the cause, that the facts agreed, and upon which the court.grounded its judgment, are substantially as follows, viz:
That, the City of Wheeling .is, and was, before the year 1868, a corporation chartered as a city under the laws of Virginia and West Virginia; that the Wheeling, Parkersburg and Cincinnati Transportation Company, is a corporation chartered and organized in the year 1868, under the laws of the State of West Virginia, for the purpose of carrying on a transportation business, with steamboats arid barges, upon the western rivers; that a portion of its stockholders reside in West Virginia and part in Ohio; that the officers of the company reside in Wheeling, and that plaintiff’s principal office is there ; that during the years 1870, 1871, 1872, 1873 and 1874, the plaintiffs owned eight steamboats, having a different number of them at different times during the said years, and owning, usually, two,' three or four at the samé time ; that at the time of the institution of this suit, the plaintiff owned four of said steamboats; that each of said steamboats is of greater burden than twenty tons; that during the five years the plaintiff owned no other property whatever, except the said steamboats and their appropriate outfits, and during’ all of the said years, the
After setting out the said tax bills in extenso, the agreement of facts proceeds to state further, substantially, “that . fhe abbreviations ‘pip.’ in the said tax bills mean ‘personal property;’ that the amounts collected and named as ‘school.levy,’ were not.for the city; that.the taxes so paid, 'to. said.Black, for. the’ said city, were for the, general . expenses apd. purposes of the, city, and not for any special
It further appears by the bill of exceptions, that after the court found for the defendant upon the facts agreed,, the plaintiff moved the court to set aside its said finding, and find for the plaintiff, and the court overruled the motion.
It is now here claimed by the plaintiff, that the court erred in its rulings and judgment in this:
First. The assessment of said taxes on said steamboats, for each of said years, and the collection thereof, was in violation of article one, section ten, paragraph three of the Constitution of the United States, which declares that “no State shall, without the consent of Congress, levy any duty of tonnage.”
' Second. .That the assessment of said taxes for each of said years,.and the collection thereof, was in violation of article one, section eight, paragraph three of said Constitution, which declares that Congress shall have power “to regulate commerce with foreign nations, and among• the several States, and with the Indian tribes..”
The first, and chief question, to be determined in this causé is, whether the assessment of the táxés upon the value of said steamboats against the plaintiff, and the collection of the taxes from the plaintiff, is prohibited by said two paragraphs of the Constitution of the United States, above quoted..
, It is conceded, in argument, that the council of the city may levy and' collect taxes anínially fór the use of 'the city,' oil personal’’ jjrojterly' in the city, subject to certain limitations'1 as'"to‘“the amount’' of such tax, not' necessary" 'to specify here';' 'that the pérsórial-
“1. Although taxes levied, as on property, by astate upon vessels owned by its citizens, and based on a valuation of the same, are not prohibited by the Federal Constitution, yet taxes cannot be imposed on them by the State, at so much per ton of the registered tonnage. Such taxes are within the prohibition of the constitution, ‘that no State shall, without the consent of Congress, lay any duty of tonnage.” In the cases last cited, Justice Clifford, who delivered the opinion of the Court, which seems to have been unanimous, says, commencing on page 212: “ Power to tax, -with certain exceptions, resides with the States independent of the Federal Government, and the power, when confined within- its true limits, may be exercised without restraint from any Federal authority They can not, however, without the consent of Congress,*179 lay any duty of tonnage, nor can they levy any imports or duties on imports or exports, except what may be absolutely necessary for executing their laws, as, without the consent of Congress, are unconditionally prohibited from exercising any such power. Outside of these prohibibitions , the power of the State to tax, extends to all [objects within the sovereign power of the States, except the means and instruments of the Federal Government. But ships and vessels owned by individuals, and belonging to the commercial marine, are regarded as the private property of their owners, and not as the instruments or means of the Federal Government, and, as such, when viewed as property, they are plainly within the taxing poioer of the States, as they are not withdrawn from the operation of that power by any express or implied prohibition contained in the Federal Constitution. Argument, therefore, to show that they may be taxed as other property belonging to citizens of the State, is hardly neces-: sary, as the opposite theory is indefensible in principle, contrary to the generally received opinion, and is wholly unsupported by any judicial determination. Direct adjudications to support that proposition, are not to be found in the reported decisions of this Court; but there are several cases which concede that such a tax, if levied by a State, would be legal, and no doubt is entertained that the concession is properly made.” Nathan v. Louisiana, 8 Howard 82; Howell v. Maryland, 3 Gill 14. Taxes levied by a State upon ships and vessels, owned by the citizens of the State as property, based on a valuation of the same, arc not within the prohibition of the Constitution; but it is equally clear and undeniable that taxes levied by a State upon ships and vessels, as instruments of commerce and navigation, are within that clause of the instrument, which prohibits the States from levying any duty of tonnage, without the consent of Congress. Annual taxes mpon property in ships and vessels are continually laid, and their validity was never*180 doubted .or called, in question. 12 Wall 213 and 214.
IQ the case of Morgan v. Parham, 16 Wall. 471, which was decided December, 1872, according to the syllabus, it decided I
. “1.. When a vessel is regulai'ly registered in the port to which it belongs, that is to say, f in the port nearest to which her owner, husband, or acting and managing-owner usually resides/ [registered, ex. gr., at New York,} the fact that she may be.temporarily in a port of a State [as ex. gr., Mobile, in Alabama,] other than that where her home port is, and engaged in lawful commerce — one •of the daily line of steamers — between that port and the port of a yet third State, [as ex. gr., New Orleans, in Louisiana] does not cause her to become incorporated into the personal property of .the State of Alabama, and .no State but that in which her- home.port is, has dominion over her for the purpose of taxation.
,2. The fact-that the vessel was enrolled by her master .as a coaster at Mobile, Alabama, and that her license as a coaster was renewed from year to year, does not affect her registry in New York, or her ownership there. It accordingly does.not change the rule.”
In the case last cited, Justice Hunt, who delivered the opinion of the Court, says commencing on page 474: • “ The fact that the vessel was physically within the limits .of the city of Mobile, at the time the tax was levied, does not decide the question. Thus, if a traveller on that day had been- passing through that city, in his private carriage, or an emigrant with his worldly goods on a -wagon, it is not contended that the property of either of these persons would be subject to taxation within the city. It is conceded by the.respective counsel, that it would .not have been. On the other hand, this vessel, although a vehicle of commerce, was not exempt from taxation . on that score. A steamboat, or a post coach, engaged in local .business within a State,'may be subject to local taxation, .although it carry the mail of the United States. The commerce between the States may not be interfered
In' each of those cases, the taxation was upon a subject directly connected with the navigation' of the public waters, and with the commerce of the country. ' In the first case, a statute had been passed requiring'every vessel entering the harbor of New Orleans to pay five dollars to the port wardens, in addition to other fees, whether any service were performed or not. In the second case, vessels navigating the waters of the Hudson River were required to take a license for that purpose from the'State of New York. • The imposition in this class of cases, was a tax upon the use of the public waters of the country, and tended, immediately, to interfere with, and' to obstruct, the commerce between the States. In the instance before us, the tax was upon a vessel at the wharf. It was, in this respect, as if a tax had been laid upon lumber or cotton lying on 'the dock at Mobile: This vessel' was owned by, and employed in the service of, a resident of the State of New York.' It was,'primarily and presumptively, taxable' under the authority of that State, and that State only. 'It is urged that, 'her status, or condition, was affected by what "was done, or neglected,in regard to her register'and enrolment. In Blanchard v. Martha Washington, the law on- this subject is thus' explained : “ Ships or vessels are required to be registered by the collector of • the district in which'shall be comprehended the port-to which 'the same' shall belong at the time of the registry, which port shall be claimed to be at, or nearest to which, the owner, if there be one,- or, if more than one, the husband and acting manager resides. * * ; There was-nothing, therefore, in Her enrolment in the port of Mobile, that affected her
In addition to the decisions of the Supreme Court of the United States which I have cited, there have been decisions, by some of the State Courts, of great weight, as authority, upon the question involved here. See Perry v. Torrence, 8 Ohio, 521; Howell v. The State, 3 Gill, 14; Battle v. Corporation of Mobile, 9 Ala. 234; Lott, Tax Collector v. Mobile Trade Co., 43 Ala. 578. See, also, opinion of Judge Joynes, 20 Gratt. 424—425. In the case in 8 Ohio, 521, it was decided that “ a State law, including steamboats as a portion of the property subject to taxation, is not unconstitutional.” In this case, the court, in its opinion at the conclusion, says : “ The conclusion, on the whole, is, that the tax complained of, does not interfere with the power of Congress to regulate commerce ; nor can it be regarded as a tonnage duty, because that is a tax which is levied upon the vessel as an instrument of navigation, and without reference to the place where she is owned.”
It will be seen, on examination of the case of Perry v. Torrence, that the principle determined in that case fully determines that the levying and collecting the taxes involved in this case, was, and is, not prohibited by the •Constitution of the United States.
In the case under consideration, the plaintiff isa West Virginia corporation; all its officers reside at the city of
Upon the whole, it seems to me that the finding and judgment of the municipal court of Wheeling, upon the facts agreed in this case, were right and proper, and not erroneous.
For the foregoing reasons, the judgment of the said municipal court of Wheeling, rendered in this cause, on the seventeenth day of November, 1875, is affirmed by this Court, with costs and $30 damages.
Judgment Affirmed.