Mayor, Aldermen Commonalty New York v. George Miln

Citation9 L.Ed. 648,11 Pet. 102,36 U.S. 102
PartiesThe MAYOR, ALDERMEN and COMMONALTY of the City of NEW YORK, Plaintiffs, v. GEORGE MILN
Decision Date01 January 1837
CourtUnited States Supreme Court

[Syllabus from pages 102-104 intentionally omitted] CERTIFICATE of Division from the Circuit Court for the Southern District of New York.3 In the superior court of the city of New York, the plaintiffs instituted an action of debt for the recovery of $15,000, the amount of certain penalties alleged to have been incurred by the defendant, under the provisions of an act of the legislature of the state of New York, passed February 11th, 1824, entitled 'an act concerning passengers in vessels coming to the port of New York.' The defendant, being an alien, removed the cause into the circuit court of the United States, and the pleadings in the case were carried on to issue in that court.

The act of the legislature of New York provides, in the first section, that the master of any ship or vessel arriving in the port of New York from any country of the United States, or from any other state of the United States, shall, within twenty-four hours after his arrival, make a report, in writing, to the mayor of the city of New York, or, in his absence, to the recorder, on oath or affirmation, of the name, place of birth, and last legal settlement, age and occupation, of every person brought as a passenger in the ship or vessel, or on board of her, on her last voyage, from any country out of the United States, or from any of the United States, into the port of New York, or into any of the United States, and of all persons landed from the ship, during the voyage at any place, or put on board, or suffered to go on board any other vessel, with intention of proceeding to the city of New York; under a penalty, on the master and commander, the owner, consignee or consignees, of $75, for each passenger not reported, and for every person whose name, place of birth, last legal settlement, age and occupation, shall be falsely reported.

The second section authorizes the mayor, &c., to require from every master of such vessel that he be bound with sureties in such sum as the mayor, &c., shall think proper, in a sum not to exceed $300, for every passenger, to indemnify and save harmless the mayor, &c., of the city of New York, and the overseers of the poor of the city, from all expenses of the maintenance of such person, or of the child or children of such person, born after such importation; in case such person, child or children, shall become chargeable to the city within two years: and if, for three days after arrival, the master of the vessel shall neglect to give such security, the master of the vessels and the owners shall, severally and respectively, be liable to a penalty of $500, for each and every person not a citizen of the United States, for whom the mayor or recorder shall determine that bonds should have been given.

The third section enacts, that whenever any person brought in such vessel, not being a citizen of the United States, shall, by the mayor, &c., be deemed liable to become chargeable on the city, the master of the vessel shall, on an order of the mayor, &c., remove such person, without delay, to the place of his last settlement; and in default, shall incur all the expenses attending the removal of such person and of his maintenance.

The fourth section provides, that every person, not being a citizen of the United States, entering the city of New York, with an intention of residing therein, shall, within twenty-four hours, make a report of himself to the mayor, stating his age, occupation and the name of the ship or vessel in which he arrived, the place where he landed, and the name of the commander of the vessel.

The sixth section subjects the ship or vessel in which such passengers shall have arrived, to the penalties imposed by the former sections, for any neglect of the provisions of the law by the master or owner; and authorizes proceedings by attachment against the ship or vessel for the same, in the courts of New York.

The declaration set forth the several provisions of the act, and alleged breaches of the same; claiming that the amount of the penalties stated had become due in consequence of such breaches. To this declaration, the defendant entered a demurrer, and the plaintiffs joined in the same.

The following point was presented to the court on the part of the defendant: 'That the act of the legislature of the state of New York, mentioned in the plaintiff's declaration, assumes to regulate trade and commerce between the port of New York and foreign ports, and is unconstitutional and void.' Upon this question, the opinion of the judges being opposed, the same was certified to this court, at the request of the plaintiffs.

The case was argued at a former term of this court, and the justices of the court being divided in opinion, a re-argument was directed.

It was again argued by Blount and Ogden, for the plaintiffs; and by White and Jones, for the defendant.

Blount, for the plaintiff, contended, that the law in question was constitutional. The case, he said, was not without difficulty; indeed, the very hesitation of a court, constituted as this was, admonished him of the doubts and difficulties attending the solution of the question.

The law was one peculiar to this country, and it grew out of circumstances also peculiar to this country. The emigration to the United States, since the American revolution, was unprecedented in history, not merely in numbers, but in its character. It was not a military colonization, like the Greek and Roman colonies; nor was it mercantile, like the East India and American colonies of modern Europe. Neither did it resemble the emigration of the Moors from Spain, or the Huguenots from France. It was a constant and steady migration of civilized Europeans to an independent country, controlled by a civilized people. This migration was peculiar to the United States, and we cannot find legal analogies in other countries. That migration has now reached the amount of 60,500 yearly, into the port of New York alone. It was obvious, that laws were needed to regulate such a migration; and the Atlantic states, generally, have passed such laws; and the law in question is that of New York, providing that masters of vessels, bringing passengers to that port, who have no legal settlement in the state, shall give bonds to the city to indemnify it for three years from all charges on account of their maintenance. It also provides for a report to the mayor of the names, &c., of the passengers, and inflicts a penalty for a violation of the law.

At the previous argument, the defendant contended, that this was a regulation of commerce, and that the power to regulate commerce was exclusively vested in congress. Hence this law, passed by a state, was unconstitutional. We do not admit this law to be a regulation of commerce; but conceding, for the sake of the argument, it to be so, it does not follow, that it is unconstitutional.

I. Because congress has the power to regulate commerce, it is not a consequence, that it is an exclusive power. Powers granted to congress are exclusive only: 1st. When granted in terms expressly exclusive. 2d. When the states are prohibited from exercising it. 3d. When exclusive in its nature. This power clearly does not fall under the first nor second class.

Does it under the third class? The counsel contended, that a legislative power is exclusive in its nature, only when its existence in another body would be repugnant to, and incompatible with, its exercise by congress. Not that its exercise by a state legislature would be incompatible with, its exercise by congress. That is a conflict between concurrent or co-ordinate powers; and where that takes place, we concede the federal power is supreme. A power exclusive in its nature, must be such that the states can pass no law upon the subject without violating the constitution. Federalist, No. 32; 5 Wheat. 49; 1 Story on Const. Law 432.

Concurrent powers are of two classes. 1st. Where any federal legislation covers the whole ground, and exhausts the subject; as fixing the standard of weights and measures. Here, after congress has legislated, the power of the states is at an end. 2d. Where the power may be exercised in different modes, or on different subjects; or where the object admits of various independent regulations operating together. In these cases, the concurrent laws are all in force, and the state law is void only so far as conflicts with the law of congress. The 2d section of 6th article of the constitution, providing that the laws of congress, made pursuant to the constitution, shall be the supreme law of the land, proves that this species of concurrent legislation was contemplated. This court has sanctioned this view of the subject. 4 Wheat. 122, 196; 5 Ibid. 49; 9 Ibid. 200. In the case of Saunders v. Ogden, it was decided, that a bankrupt law passed by a state was valid, until it conflicted with federal legislation.

The counsel, Mr. Blount, contended, that the case of Gibbons v. Ogden, did not touch the case before the court. 1st. Because, there the power to regulate commerce was regarded as exclusive only so far as it regulated the commerce of the United States as a whole. 2d. Because, there the question decided by the court was whether a state could regulate commerce, while congress was regulating it. 9 Wheat. 200. 3d. Because it was expressly said in that case, by the court, that it never was intended to deny to the states all legislation, which might affect commerce. Ibid. 204. That decision therefore does not touch the point; and the court is now called upon to go further, and declare all state laws affecting commerce void. This is the extent of defendant's doctrine.

There is here no conflict of concurrent laws. Congress has passed no law conflicting with this law. The acts of 1779, March 2d, and of 1819, March 2d, cited by the defendant's coun...

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