Streckfus Steamers v. MAYOR AND BOARD OF ALDERMEN

• Decision Date: 15 April 1935
• Docket Number: No. 307.,307.
• Citation: 10 F. Supp. 529
• Parties: STRECKFUS STEAMERS, INC., v. MAYOR AND BOARD OF ALDERMEN OF CITY OF VICKSBURG.
• Court: U.S. District Court — Southern District of Mississippi

10 F. Supp. 529

STRECKFUS STEAMERS, INC., v. MAYOR AND BOARD OF ALDERMEN OF CITY OF VICKSBURG.

No. 307.

District Court, S. D. Mississippi, S. D.

April 15, 1935.

Leo J. Sandmann, of Louisville, Ky., for plaintiff.

Landman Teller, of Vicksburg, Miss., for defendants.

HOLMES, District Judge.

This is a libel in personam filed in this court, in admiralty, seeking an injunction to restrain the libelee from attempting to collect from the libelant a privilege tax for carrying on the business of operating steamboat excursions from the wharves of the city of Vicksburg. The boats ply the Mississippi river from St. Louis to New Orleans, and periodical excursions are conducted from Vicksburg, and various other points on the river. They dock within the city where the passengers embark and disembark. The libelant relies upon the invalidity of the ordinance as beyond the power of the city, or even the state, to enact, since it deals with a subject impliedly delegated to the national government under the Federal Constitution.

The proceeding is in admiralty, although it seeks only equitable relief, but this is the forum deliberately chosen by the litigant. There is no question of the case being on the wrong docket by mistake. The clerk first entered it in equity, but it was transferred to the admiralty docket. This was done on motion of the proctor for the libelant, who says that he intended to file it in the admiralty court and insists that this is the court in which it properly belongs. The reason, good or bad, for his choice of this forum may be gleaned from his conception of the advantages to be gained in the extensive jurisdiction which, he claims, courts of admiralty exercise. In his brief in chief on the merits, it is stated: "At the outset we desire to impress upon the Court that this action is in Admiralty; that the Court has taken jurisdiction under Admiralty, and that the jurisdiction is peculiar in that it is absolutely exclusive, albeit all-embracing. The three other jurisdictions of the District Courts, i. e., criminal, law, and equity, are all three embraced within the Admiralty, because a court of Admiralty sits as any one of the other three, yet neither of the other three may sit in Admiralty. Thus its exclusiveness and omnipotence. Such is this peculiar jurisdiction." He further contends that while admiralty proceeds upon equitable principles, and administers equitable remedies, it is not fettered by the equitable restriction that no suit in equity may be maintained where the plaintiff has a plain, adequate, and complete remedy at law. With this contention he seeks to avoid the direct ruling in Matthews v. Rodgers, 284 U. S. 521, 52 S. Ct. 217, 76 L. Ed. 447, that, in Mississippi, the taxpayer ordinarily has a plain, adequate, and complete remedy at law by paying an illegal tax and suing to recover it.

There is no dispute about the facts, which have been embraced in four distinct agreements filed by counsel. The Streckfus Steamers, Inc., is a corporation created and existing under the laws of the state of Delaware. It is the owner of four large excursion steamers, propelled by paddle wheels, equipped with restaurants, cafeterias, soft drink and beer stands, and large dancing halls, with many seats and benches susceptible of use for general observation. They also have booths for the sale and raffling of trinkets. They are not equipped to carry freight, nor do they have sleeping quarters for passengers, but only for the crew. In other words, they are equipped to conduct short excursions for the pleasure of the passengers and the profit of the owners, a specified fee being charged to ride thereon. All of the boats have been and are duly licensed and enrolled by the United States Customs Service in the coasting trade upon the public navigable waters of the United States. The corporation's main office and the home port of its boats is in the city of St. Louis, Mo. The boats are not permanently located in the city of Vicksburg, but pass up and down the Mississippi river and its tributaries, from town to town, holding excursions. The libelant has for many years conducted excursions from the libelee's wharf. They are extensively advertised in the city of Vicksburg, and extensively patronized by its citizens and the inhabitants of the surrounding country. The excursionists have no other destination than to return to the wharf of the city, after having enjoyed a ride upon the river.

By the language of the ordinance a privilege or license tax of $200 is levied "upon each excursion boat taking passengers to and from the city, for each day or part of the day." Shortly after the passage of the ordinance the libelant paid the tax under protest and sought unsuccessfully in the state court to recover it in a common-law action. Mayor et al. v. Streckfus Steamers, 167 Miss. 856, 150 So. 215. It was there held that the ordinance was valid as to the business being carried on which was wholly intrastate. While that case was pending, under some agreement between the parties, other excursions were conducted and no effort was made by the officers of the city to enforce collection by civil or criminal process. Since its termination, the city, in a civil action in the state court, has sued to recover taxes subsequently accruing under the ordinance. This suit resulted in a judgment for the city, and the defendant appealed. The case is now pending in the highest court of the state.

While one basis of attack now made upon the ordinance does not seem to have been made in the state court in either of the cases mentioned, no satisfactory reason is given why it might not have been done, or may not yet be done in the case pending on appeal. If the ordinance is invalid as violative of the Federal Constitution and laws, which is the present contention, a court of law is as competent to adjudicate such issue as a court of equity or admiralty. The contention unsuccessfully urged in the state courts, that the excursions out of Vicksburg are operations in interstate commerce, is renewed here, but, in addition, it is forcefully contended that the boats are under the admiralty and maritime jurisdiction of the United States and that the ordinance is void, because it attempts to legislate upon the substantive law of navigation, a subject under the exclusive legislative control of the Congress, except as to purely local police regulations, which this tax is not. The latter contention was not urged in the state court in either of the common-law actions, and in presenting it here counsel confuses the two points. The power of Congress to legislate upon the substantive law of navigable waters is not dependent upon the constitutional grant to regulate commerce among the several states and with foreign nations (Const. art. 1, § 8, cl. 3). The two powers, while analogous in many respects, are entirely distinct from, and have no necessary...