11 Mich. 43 (Mich. 1862), Chilvers v. People

Citation:11 Mich. 43
Opinion Judge:Manning J.:
Party Name:Thomas Chilvers v. The People
Attorney:Newberry & Pond, for plaintiff in error: T. McEntee, City Attorney of Detroit, for the people:
Judge Panel:Manning, J. Christiancy and Campbell JJ. concurred. Martin, Ch. J. dissenting.
Case Date:November 18, 1862
Court:Supreme Court of Michigan

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11 Mich. 43 (Mich. 1862)

Thomas Chilvers


The People

Supreme Court of Michigan

November 18, 1862

Heard May 23, 1862; May 24, 1862

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Error to the Recorder's Court of Detroit, where plaintiff in error was convicted on a complaint for a violation of an ordinance of said city relative to ferries, approved July 24, 1861. The case was submitted in the court below on the following stipulation as the sole evidence:

"The People v. Thomas Chilvers. It is hereby stipulated to be used in evidence on the trial of this case, that at the time mentioned in the complaint, the defendant was captain of the Gem, a steamboat used and employed in the business of carrying passengers and property from Detroit to Windsor in Canada, a village opposite to said city, and sometimes engaged in carrying passengers and property to Fort Wayne, in Wayne county, Michigan, in towing vessels, and in going to any part of the river where she may be hired to run.

"That the Gem is a United States vessel, owned in the United States, and above the burden of twenty tons, enrolled and licensed for the coasting and foreign trade under and by virtue of the laws of the United States.

"That the boundary between the United States and Canada is midway through the Detroit river.

"That the Gem and her officers are subject to all the laws regulating customs, both in Canada and the United States; that by said laws they are obliged to report all goods transported at once to the Custom House Department, and only to discharge at such times and such places as said officers permit.

"That a custom house officer is on each dock, in Canada and Detroit, to see that the laws are enforced.

"That the owners of said Gem pay $ 100 for the privilege of landing at a private wharf in said city, from now until the first of April next.

"That said Gem carries the light required by the act of Congress, and that no license has been paid to said city since said ordinance was passed.

"Wm. J. Speed, City Attorney.

"John S. Newberry, (Att'y) for Deft.

"Nov. 8, 1861."

Upon this evidence, under the charge of the court, the jury returned a verdict of guilty. Exceptions were taken to the rulings of the recorder, but they are not given here, as the questions arising upon them sufficiently appear by the opinions.

Judgment affirmed.

Newberry & Pond, for plaintiff in error:

The ordinance in question is not within the power of the Common Council, is unreasonable, and therefore void.

By law the council has the power to "license, continue and regulate," etc. The power granted does not authorize the prohibition. When the Legislature wish to authorize the prohibition, they do so in express terms.

The license fee is a tax. It is not based upon any idea of benefit to the person taxed, and is therefore unjust: 2 Mich. 567. Corporations can not impose a burden without a benefit: 16 Pick. 125; 10 Wend. 102. It is unreasonable because in restraint of trade and business; because a private dock must still be paid for the privilege of landing; because no property of the city is used, and therefore no reason why the owner of a boat should pay a license merely for keeping it, any more than the owner of a steam engine, or other personal property; because the owner already pays a tax upon it is personal property; because unreasonably unequal, since a boat running to Canada ought no more to pay than one running to Wyandotte or Cleveland; because the paying of a license promotes in no manner the health or good morals of the people, and is not a reasonable exercise of the police power: 2 Dutch. 298.

2. The word license simply means permission, and the power to license does not import the power to exact a fee therefor: 2 Halst. 64; 3 Strobh. 599; 9 Wheat. 190, 213; 5 Hill 211; 5 Cow. 462. A license fee is a tax: 31 Penn. St., 17; 3 Ala. 137; 12 Wheat. 419; 6 How. 408, 446, 458; 11 G. & J., 406. The charter giving power to levy a tax on property is equivalent to saying it shall not be levied on anything else: Broom's Max., 278; 33 N. H., 430; A. & A. on Corp., 177; 2 Dutch. 298; 2 B. Monr., 134. By the Constitution taxes are to be uniform, and levied upon property. It is, therefore, unconstitutional to exact a license tax.

3. The ordinance is in violation of the Constitution of the United States, which vests in Congress the sole power to regulate commerce with foreign nations: 9 Wheat. 189; 7 How. 392; 14 How. 573; 3 Cow. 743; 14 Pet. 570; 5 Wheat. 23; 12 Pet. 446; 15 Pet. 511; 11 Pet. 158; 12 Wheat. 419; 2 Strobh. 599; 1 Newb. Ad., 551; 18 How. 429. The enrollment and license authorize the vessel to be employed in the foreign and coasting trade. Bright. Dig., 143, § 22; 4 Stat. 487; 9 Wheat. 212; 6 McLean 240; 3 Cow. 716; 32 Me. 362; 14 How. 575. And no State can retard, burden or limit the right thus conferred by Congress: 12 Wheat. 447; 4 McLean 293; 3 Mich. 235. And see 9 Wheat. 212-15; 1 Humph. 156; 4 Hill 209.

T. McEntee, City Attorney of Detroit, for the people:

The right to grant a ferry franchise is a sovereign prerogative, always claimed and exercised by the States. It is a part of the police power of the States, never surrendered by them, nor claimed by the general government: 8 How. 569; 10 How. 533; 23 How. 435; 9 Wheat. 1.

The jurisdiction of the State extends to the center of the Detroit river. So far her power to regulate ferries can not be questioned: 11 Wend. 586. It is not necessary that the State should control the landing on the Detroit shore: 6 B. &. C., 703; 11 Wend. 590.

Enrollment and registry are intended to confer on vessels a national character for commercial purposes: 9 Wheat. 1. They do not confer any exemption from the police regulations of the States. The license in this case is to be employed in the coasting or foreign trade. We concede that the right to regulate commerce includes the right to regulate navigation; and that the transportation of passengers falls within this power. But the conveyance of passengers from a foreign country to the United States, in the ordinary operations of foreign commerce, or their transportation from one State to another in the operations of a proper coasting trade, is a very different matter from the running of a ferry for carrying them.

The legislation of Congress and the decisions both of the State and national courts, lead to the same conclusion, that ferrying is viewed as distinct from commerce. See 6 Penn. L. J., 132; 16 B. Monr., 799, 802; 9 Wheat. 203, 204; 11 Wend. 586; 16 How. 534. Also 1 Stat. 305; Bright. Dig., 855, § 40.

The exercise of the right to engage in commerce and the protection of that right under the Constitution of the United States, are subordinate to the right of the State to protect its property and enforce its police regulations; and this principle extends to cases other than those of ferries, which involve more fully and directly an apparent interference with the privileges claimed under licenses to vessels. See cases of fisheries, 18 How. 74; 3 Gray 271; State pilots, 12 How. 300; tax on passengers, 11 Pet. 102; 7 How. 283; erection of bridges, 6 McLean 70; sale of liquors, 5 How. 504; lights in harbors, 21 How. 847.

The power to regulate commerce with foreign nations is the same as the power to do so among the several States. Therefore, if a State can not regulate ferries between her own shores and a foreign country, she can not between herself and another State. But that she may, in the latter case, is settled by general usage, and recognized in 8 How. 569; 16 How. 525; 23 How. 433; 11 Wend. 590; 4 Zab. 206; 16 B. Monr., 699.

But if the power was in Congress, the States might exercise it until such time as Congress should pass some law on the subject: 15 B. Monr., 699; 2 Pet. 245.

Manning, J. Christiancy and Campbell JJ. concurred. Martin, Ch. J. dissenting.


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Manning J.:

Chilvers, the plaintiff in error, was prosecuted in the Recorder's Court of the city of Detroit, under a city ordinance, for keeping a ferry over Detroit river, between the city and Windsor, on the opposite side of the river, in Canada, without a license from the city for that purpose, and was fined one dollar and the costs.

Several objections are taken to the proceedings before the Recorder.

The first objection relates to the form of the complaint; but as that has been waived, we shall pass over it without further noticing it, and proceed to the consideration of the several objections going to the merits of the case.

The first of these objections is a want of power in the Common Council of the city to pass the ordinance in question.

By the charter power is given the Common Council to license, continue and regulate so many ferries from within said city to the opposite shore of the Detroit river as shall seem most conducive to the public good: Laws of 1857, p. 95, § 21, 6th.

The first section of the city ordinance provides that no person shall keep a ferry or boat for carrying and transporting persons and property across the Detroit river to the opposite shore without a license therefor from the mayor.

By the second section, the mayor is authorized to grant a...

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