Helena-Glendale Steam Ferry Co. v. State

• Citation: 57 So. 362,101 Miss. 65
• Decision Date: 12 February 1912
• Docket Number: 15,473
• Court: United States State Supreme Court of Mississippi
• Parties: HELENA-GLENDALE STEAM FERRY CO. v. STATE

57 So. 362

101 Miss. 65

HELENA-GLENDALE STEAM FERRY CO. v. STATE

No. 15,473

Supreme Court of Mississippi

February 12, 1912

October, 1911

APPEAL from the circuit court of Tunica county, HON. SAM C. COOK Judge.

The Helena Glendale Ferry Company was convicted of operating a ferry without paying the privilege tax required by statute and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

W. R Satterfield and J. T. Lowe, for appellants.

Our contention is, that the tax sought to be levied in this case, and collected, and for which the defendants were convicted and fined, was not a tax on the individual owners of the boat, or on the franihise, or on the landing or wharf, but that same was an attempt to tax the business of operating a ferry, which is simply carrying people and freight across the Mississippi river, from Helena, Arkansas, to Glendale, Mississippi, and back. Sustaining us in this contention, we beg to cite the following cases: Carter v. State, 60 Miss. 456; Harness v. Williams, Trustee, 64 Miss. 600; Alcorn v. State, 71 Miss. 464.

And we now submit that the said business of carrying freight and passengers from Helena, Arkansas, to Glendale, Mississippi, and back again, as aforesaid, is commerce between the said states of Arkansas and Mississippi, such as is within the power of congress, exclusively, to regulate. See Glouster Ferry Co. v. Penn., 114 U. S. Rep. 196 (29 L. Ed.), p. 158. Note the language of the court.

"As to the first reason thus expressed, it may be answered that the business of landing and receiving passengers and freight at the wharf in Philadelphia is a necessary incident to, indeed, is a part of their transportation across the Delaware river, from New Jersey. Without it that transportation would be impossible. Transportation implies the taking up of persons or property at some point and putting them down at another. A tax, therefore, upon such receiving and landing of passengers and freight is a tax upon their transportation, that is, upon the commerce between two states involved in such transportation."

Further citing: "The transportation as to passengers is not completed until they are disembarked at the pier of the city to which they are carried; and, as to freight until it is landed upon such pier, and all restraints by exactions, in form of taxes, upon such transportation, or upon acts necessary to its completion, are so many invasions of the exclusive power of congress to regulate that portion of commerce between the states." St. Clair County case reported in 192 U.S. Rep. 454; L. C. P. Ed., vol. 48, p. 518; Covington Bridge case, U.S. Rep., sec. 154, p. 204; 38 L. Ed., p. 962; Postal Telegraph Co. v. Wirt Adams, cited in 71 Miss. 555.

Jas. R. McDowell, assistant attorney-general, for appellee.

I think it beyond dispute that the state would have a right to require a privilege license from the appellant if it stopped at two landings in Mississippi and carried freight and passengers from one point in the state to another and also to points out of the state. Such, however, seems not to be the case. The only business this ferry carries on is the carrying of freight and passengers from Glendale, Mississippi, to Helena, Arkansas. It remains, therefore, to determine whether the collection of a privilege license from the company doing only an interstate business would be an interference with interstate commerce under the Constitution of the United States.

There seems to be two different lines of decisions, and I shall cite the court a few cases and submit the question without argument. Wiggins Ferry Co. v. East St. Louis, 107 U.S. 365, 27 L.Ed. 419; Maine v. Grand Trunk Railway, 35 L.Ed. 994; Gloster Ferry Company v. Pennsylvania, 114 U.S. 196-218, 29 L.Ed. 158; Crutcher v. Kentucky, 35 L.Ed. 649, 47 L.Ed. 419; 10 Am. Dig., p. 791, sec. 119.

Argued orally by J. F. Lowe, for appellant.

OPINION

MAYES, C. J.

Section 3814 of the Code of 1906 provides that "each steam ferry operated in the state, in whole or in part, on any stream," shall pay a privilege tax of $ 150. The Helena-Glendale Steam Ferry Company is owned by Don G. Owen and H. C. Murnan as partners. The domicile of the partnership, its members, and the ferryboat, is at Helena, Phillips county, Ark. In October, 1910, the owners were indicted in Tunica county, Miss., for exercising the privilege of operating a steam ferry in this state without paying the privilege tax required by the statute above quoted. By agreement a trial was had before the judge, sitting as judge and jury, on an agreed statement of facts, and the court found the defendants guilty and fined them in the sum of seven hundred and fifty dollars and costs, from which conviction an appeal is prosecuted to this court.

In addition to the facts already stated, the agreed facts show that the ferry company at the time of the indictment was engaged in ferrying passengers and freight for hire across the Mississippi river from the city of Helena, Ark., to the landing known as Glendale, in Tunica county. It is further shown that the ferry company owned the land at Glendale, and makes regular trips from Helena to Glendale; that the sole business engaged in by the ferry company consists in ferrying passengers and freight from Helena, Ark., to Glendale, Miss., and back, Glendale being just opposite Helena and directly across the river. The ferryboat never stops at the Mississipi side, except to load and unload freight and passengers. In other words, all the business engaged in by this ferry company is simply to come from the Arkansas side to the Mississippi side, and return from the Mississippi side to the Arkansas side. It makes just this one landing in Mississippi, and is exclusively engaged in ferrying passengers and freight from Mississippi to Arkansas and back. The question is: Has the state of Mississippi the right to levy this tax?

An examination of the case of Gloucester Ferry Company v. Commonwealth of Pennsylvania, 114 U.S. 196, 5 S.Ct. 826, 29 L.Ed. 158, seems to settle this question. In that case the United States supreme court expressly holds that a state has no power to levy any tax so as to impose any burden on interstate commerce. The court says: "It matters not that the transportation is made in ferryboats which pass between the states every hour of the day. The means of transportation of passengers and freight between the states does not change the character of the business as one of commerce, nor does the time within which the distance between the states may be traversed. Commerce among the states consists of intercourse and traffic between their citizens, and includes the transportation of passengers and property and the navigation of public waters for that purpose, as well as the purchase, sale, and exchange of commodities. The power to regulate that commerce, as well as commerce with foreign nations, vested in congress, is the power to prescribe the rules by which it shall be governed--that is, the conditions upon which it shall be conducted; to determine when it shall be free, and when subject to...