Cannon v. New Orleans

• Decision Date: 01 October 1874
• Citation: 87 U.S. 577,22 L.Ed. 417,20 Wall. 577
• Parties: CANNON v. NEW ORLEANS
• Court: U.S. Supreme Court

87 U.S. 577

22 L.Ed. 417

20 Wall. 577

CANNON v. NEW ORLEANS.

October Term, 1874

ERROR to the Supreme Court of Louisiana; the case being thus:

The Constitution of the United States ordains as follows:¹

"Congress shall have power to regulate commerce with foreign nations and among the several States, and with the Indian tribes. No State shall, without the consent of Congress, lay any duty of tonnage."- With these provisions in force as fundamental law, the city of New Orleans made an ordinance as follows:

"From and after the 1st day of January, 1853, the levee dues on all steam boats which shall moor or land in any part of the port of New Orleans shall be fixed as follows; ten cents per ton if in port not exceeding five days, and five dollars per day after said five days shall have expired; provided, that boats arriving and departing more than once in each week shall pay only seven cents per ton each trip."

This ordinance was subsequently amended by the substitution of the words "levee and wharfage dues" for the words ':levee dues," and by providing further that "boats making three trips per week shall pay five cents per ton each trip."

The length of both shores of the Mississippi embraced by the port of New Orleans is at least twenty-two miles. The entire portion of the shore on which wharves had been built, was at most two miles; less than one-tenth of the wharved space.

In this state of things and under the ordinance above-mentioned, the city had claimed and collected of one Cannon for several years a tax on his steamboat, the R. E. Lee; and claiming it again Cannon filed a petition to enjoin such further collection, and also to recover back the money already paid. The ground of his petition was, that under each of the above-quoted clauses of the Constitution the ordinances were void. The Supreme Court of the State held the ordinance valid, and dismissed the petition. Its view was thus-expressed:

"The same points that are made in this case, supported by the same line of argument as here, were presented in the case of The First Municipality v. Pease et al.,² and were decided adversely to the position taken by the plaintiff in this case.

"We think the views there expressed correct.

"The 'levee dues,' under consideration, are not a 'duty on tonnage,' nor a regulation of or burden on commerce, nor a duty upon vessels plying between the States, within the contemplation of the Constitution of the United States, but charges as compensation for commercial facilities furnished by the city, and for which, by the common consent of mankind, compensation is paid.³ The question of the right to impose such charges, whether under the name of wharfage or levee dues, being judicially determined, the manner and extent of its exercise are left to those to whom the management of the municipal affairs are intrusted, under their responsibility to those whom they represent. The aggregate of charges may possibly be largely in excess of the actual necessary expenses during one year, and the very next be insufficient to meet. This will result from the nature of the river banks, the action of the river current, the quality and nature of materials used, the fluctuations of commerce; and many other causes unforeseen and irregular in their operation, and all which show the impossibility of judicial control and regulation of the subject."

From the decree of dismissal Cannon brought the case here.

Messrs. R. H. Marr, P. Phillips, and W. W. King, for the plaintiff in error. The brief of these gentlemen mentioned, in the course of its argument, that in the year 1843, and in consequence of a very onerous wharfage tax imposed by the city in 1842, the legislature of Louisiana passed an act as follows:

"From and after the passage of the present act, it shall be incompetent for the mayor and city council of New Orleans, or for either of the municipalities of said city to enact, or enforce, or execute any law, ordinance, or regulation now enacted, whereby any tax, duty, impost, or charge of any nature whatsoever, shall be or is imposed upon goods, produce, wares, and merchandise of whatsoever kind or nature, landed in or shipped from the corporate limits of the said city."

They further stated that the Supreme Court of the State decided that after this act this wharfage tax could not be collected.⁴

Mr. W. H. Peckham, contra.

Mr. Justice MILLER delivered the opinion of the court.

This writ of error is based upon the proposition that the city ordinance is in conflict with two clauses of the Constitution of the United States, namely, that which grants to Congress the right to regulate commerce with foreign nations, among the States, and with the Indian tribes; and that which forbids the States to levy any duty of tonnage without the consent of Congress.

We shall only consider the question raised by the latter clause.

It is argued in support of the validity of the ordinance that the money collect under it is only a compensation for the use of the wharves which are owned by the city, and which have been built and are kept in repair by the city corporation.

Under the evidence in this case of the condition of the levee and banks of the Mississippi River within the limits of the city, to which the language of the ordinance must be applied, this contention cannot be sustained. It is in proof that of the twenty miles and more of the levee and banks of the Mississippi within the city, not more than...