92 U.S. 259 (1876), Henderson v. Mayor Of City Of New York

Citation92 U.S. 259, 23 L.Ed. 543
Case DateMarch 20, 1876
CourtUnited States Supreme Court

Page 259

92 U.S. 259 (1876)

23 L.Ed. 543







United States Supreme Court.

March 20, 1876


THESE cases come here by appeal,--the former from the Circuit Court of the United States for the Southern District of New York, the latter from the Circuit Court of the United States for the District of Louisiana.

In the case from New York, which is a suit in equity against the mayor of the city of New York and the Commissioners of Emigration, the bill alleges that the complainants are subjects of Great Britain, and owners of the steamship 'Ethiopia;' that their vessel arrived at the port of New York from Glasgow, Scotland, on the 24th of June, 1875, having on board a

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number of emigrant passengers, and, among others, three persons whose names are specified, who came from a foreign country, intending to pass through the State of New York, and settle and reside in other States of the Union and in Canada; that, by the statutes of the State of New York, the master of every vessel arriving at the port of New York from a foreign port is required, within twenty-four hours after his arrival, to report in writing to the mayor of New York the name, birthplace, last residence, and occupation of every passenger who is not a citizen of the United States; that the statute then directs the mayor, by indorsement on this report, to require the owner or consignee of the vessel to give a bond for every passenger so reported, in a penalty of $300, with two sureties, each to be a resident and freeholder of the State, conditioned to indemnify the Commissioners of Emigration, and every county, city, and town in the State, against any expense for the relief or support of the person named in the bond for four years thereafter; but that the owner or consignee may commute such bond, and be relieved from giving it, by paying for each passenger, within twenty-four hours after his or her landing, the sum of one dollar and fifty cents, fifty cents whereof is to be paid to other counties in the State, and the residue to the Commissioners of Emigration for their general purposes, and particularly to be used in erecting wharves and buildings, and in paying salaries and clerk hire.

That if he does not, within twenty-four hours after landing such passengers, either give the bond or pay the commutation-tax for each passenger, he is liable to a penalty of $500 for every such passenger, which is made a lien on, and may be enforced against, the vessel, at the suit of the Commissioners of Emigration.

The master of the 'Ethiopia' made the report required by the act: whereupon the complainants, in order to test the validity of the provisions of the acts requiring the bond or the commutation thereof, filed their bill, which the court, on the demurrer of the defendants, dismissed. The complainants thereupon appealed to this court.


Mr. James Emott for the appellants.

1. The acts of the legislature of the State of New York

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under which the defendants demand the bond or the commutation-tax for every alien landing from a foreign port on his way to other states or countries, and which the complainants allege deprive them of rights to which they are entitled by the Constitution of the United States, consist of a series of acts passed in 1847, 1848, 1849, 1850, 1853, 1871, and 1873.

2. The extent of the decision in the case of the City of New York v. Miln, 11 Pet. 102, is simply that the State may lawfully require information of the character of the passengers who enter her ports from abroad, and to that end may, by law, require the master of a vessel to report an account of his passengers.

The Revised Statutes of New York, adopted in 1830, imposing for the first time a tax upon immigrants, were, in Passenger Cases, 7 How. 283, pronounced unconstitutional, so far as they attempted to subject vessels or their owners to a tax or imposition of head-money upon, or on account of, passengers from foreign countries.

The act of 1849, which requires the carrier of passengers to give a bond of indemnity in the sum of $300, with sureties and a continuing liability for four years, to the State of New York, for every passenger landed, whether he remains in the State or is to pass directly through it to other states or countries, whether rich or poor, old or young, well or sick, competent or disabled, to support himself, is, to that extent, unconstitutional. Its well-understood purpose was not, however, to obtain such bonds. It is disclosed by the succeeding provisions, which authorize the parties liable to be called on for these bonds to commute by the payment of a specific sum for every passenger.

3. The acts of the legislature under which bonds or a tax is demanded for passengers are in violation of the following provisions of the Constitution:----

Art. 1, sect. 8. 'The Congress shall have power . . . to regulate commerce with foreign nations and among the several States.'

Sect. 10, subd. 2. 'No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be actually necessary for executing its inspection laws.

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No State shall, without the consent of the Congress, lay any duty of tonnage.'

The laws in question are regulations of commerce which a State has no power to make; and the provisions exacting headmoney for immigrants are an attempt to lay an impost or duty on imports.

4. Commerce includes navigation. It means intercourse. It includes all the subjects of such intercourse, and the transportation of persons as much as of property. Gibbons v. Ogden, 9 Wheat. 189; Crandall v. Nevada, 6 Wall. 35;Railroad Co. v. Fuller, 17 id. 560; Railroad Co. v. Maryland, 21 id. 456.

5. The power conferred upon Congress to regulate commerce is exclusive. Gibbons v. Ogden, supra; Passenger Cases, 7 How. 283; Ex parte McNeil, 13 Wall. 236; The State Freight Tax Cases, 15 id. 232; Railroad Co. v. Fuller, supra.

6. If the act of the legislature of New York had simply required a tax of one dollar and fifty cents for every passenger, and imposed, in case of failure to pay, a penalty, which should be a lien on the vessel, it would have been explicitly condemned by the decision in Passenger Cases, supra.

The alternative of a bond offered apparently to make the election of the passenger or his election of the passenger of his carrier is a device to collect a tax on immingrants, and was manifestly intended to evade the decision which condemned, as unconstitutional, its direct imposition. That which cannot be done directly will not be permitted to be done indirectly. Almy v.California, 24 How. 169; Brown v. Maryland, 12 Wheat. 419.

The statutes in question are not an exercise of the police power, whict, it might be claimed, belongs to the States respectively, to protect themselves against paupers or criminals. They violate the acts of Congress and our treaties with foreign powers.

Mr. Francis Kernan and Mr. John E. Develin, contra.

1. The question arising in this case was not adjudicated in Passenger Cases, 7 How. 283.

2. The act to be now passed upon does not impose a tax upon the passenger. It provides, that, 'within twenty-four hours after the landing of any passenger,' the master of the vessel 'from which such passenger shall have been landed' shall

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make to the mayor of the city of New York the report specified. It further provides, that it shall be lawful, within twenty-four hours after the landing of such passengers, to commute for the bonds required by paying one dollar and fifty cents for each passenger.

3. The act under consideration is not a regulation of commerce. It is a police regulation to protect the State from foreign paupers by appropriate legislation, the constitutional character of which seems to have been settled by this court. City of New York v. Miln, 11 Pet 102; Passenger Cases, 7 How., per McLean, J., pp. 400, 406, 409, 410; Holmes v. Jamison, 14 Pet. 540; Grove v. Slaughter, 15 id. 449; Prigg v. Pennsylvania, 16 id. 539. It does not, as did the Massachusetts statute, which was held valid, prevent the landing of immigrants until after its provisions are complied with. It affects only persons who are upon the soil of the State and clearly subject to its jurisdiction, and imposes no tax upon the immigrant or the importer.

4. The act is not an attempt to evade the decision of the court in the Passenger Cases: on the contrary, it is in conformity with the law there declared. The majority and minority of the court declared that the States could rightfully protect themselves from pauper immigration from foreign countries.

The State of New York, in accordance with that decision, and in the only practical mode in which she can exercise her conceded right of self-protection against foreign paupers, exacts, by the statute under consideration, a bond to indemnify the State if the immigrant shall be a public charge within five years.

But it is objected that the law requires a bond for all the passengers who have been landed. We answer, that, if the State has rightful authority to exact such a bond for every passenger who in the opinion of its agent is incompetent to maintain himself, the law is not void because it exacts the bond as to all.

The right of the State to exact this indemnity cannot depend upon the manner in which it is exercised after the immigrant has been landed. There is no practical mode in which the State can correctly decide which of these alien strangers is self-supporting. Hence it may rightfully exact indemnity from all.

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The right of the owner or consignee to commute by paying a small sum instead of giving a bond of indemnity for each does not render the law invalid. This is at the option of the owner or consignee. It cannot be tortured into an indirect mode...

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