Waring v. the Mayor

• Court: U.S. Supreme Court
• Writing for the Court: CLIFFORD
• Citation: Waring v. the Mayor, 8 Wall. 110, 19 L.Ed. 342, 75 U.S. 110 (1868)
• Decision Date: 01 December 1868
• Parties: WARING v. THE MAYOR

75 U.S. 110

19 L.Ed. 342

8 Wall. 110

WARING v. THE MAYOR.

December Term, 1868

ERROR to the Supreme Court of Alabama; the question involved arising upon that clause of the Constitution which ordains that 'no State shall lay any imposts on imports, or exports, except what may be absolutely necessary for executing its inspection laws.'

The facts were these:

The city of Mobile is situated on the west bank of the Mobile River, a short distance above its entry into the Bay of Mobile. The bay stretches about thirty miles below the city, and is connected with the Gulf of Mexico by a narrow strait. The town of Mobile, by an act of Congress passed 22d July, 1813,¹ was designated as the only port of entry for a collection district bounded by West Florida on the east, and Louisiana on the west, and comprising the bays, inlets, and rivers emptying into the gulf. The Bay of Mobile is a part of this district. Vessels anchor twenty-five miles below the city, and are unladen there upon lighters, which bring their cargoes to the town. Those coming from Great Britain frequently bring a cargo of salt, and cargoes of this kind are generally sold in advance of their arrival, or as soon as they reach the bay, before bulk is broken, or they are unloaded.

In this state of commercial practice one Waring was in the habit of buying and selling salt thus imported. His custom was to purchase the entire cargo, which came in sacks, before the goods were entered at the custom-house, and usually before the arrival of the vessel, or while it was in the lower bay. When it arrived in the lower bay, he furnished his own lighters, and took the cargo from off the vessel. Until the time of such delivery the risk remained in the shippers. The consignees made the entries, presented the invoices and bills of lading, made the necessary deposit of coin for the estimated amount of the duties, and procured the permits; and when the duties were finally liquidated as required by law and the regulations of the Treasury Department, they adjusted and paid the balance.

When Waring sold the salt he sold it in the original packages, to traders, in large quantities and for re-sale.

In the year 1866, the corporate authorities of Mobile imposed a tax for municipal purposes upon all sales of merchandise in that city, and claimed of Waring a tax upon the sales of salt that he had made for six months preceding the date of the ordinance, under its conditions. He refused to pay, assigning for a reason that the salt disposed of by him was an import from a foreign country, and that the sales being made by him in the way they were, in the original packages, were still an 'import;' and thus under the clause of the Constitution above quoted, he was not liable. The mayor arrested and fined him. The chancellor on a bill filed declared the tax illegal. The Supreme Court of the State on appeal held otherwise. They did not regard Waring as an importer, and considered that the constitutional prohibition upon the States to levy duties or taxes on imports had no application to him.

Waring accordingly brought the cause here for review.

Mr. J. A. Campbell, for Waring, the plaintiff in error (a brief of Mr. P. Hamilton being filed):

This court has decided, in Brown v. State of Maryland,² that under no form or pretence can any State levy any tax upon an article imported into or exported from that State; that all such proceedings by the State are absolutely null; that till articles imported from abroad have lost their character of 'an import,' and have become incorporated with the great mass of property, within the State, they are not subject to the jurisdiction of State authority. We rest upon the doctrine of these cases, and contend that, on the facts of this case, the right of interference by the State of Alabama had not arisen, as to this property or its proceeds.

The learned counsel then proceeded to argue——

That as the cargoes were purchased before their arrival or while the vessel was in the lower bay, and as the same were brought by Waring to the city, where they were weighed and the duties settled and paid, that he was to be regarded as an importer, and that his sales of the salt, in the original packages, were exempt from State taxation, under that clause of the Constitution which ordains, that no State shall 'lay any imposts or duties on imports.'

That this prohibition is universal, and applies to the thing imported, and has no reference to the person who may be the importer.

That this is a prohibition which Congress cannot waive or impair, except on condition that the tax be paid into the common treasury of the Union.

That the tax in this case was designed for municipal purposes, and had no reference to any inspection laws, and has no sanction from the consent of Congress.

That the port of entry was the city of Mobile, and that the salt was landed as the property of Waring.³

Mr. P. Phillips, contra, maintained——

That the city of Mobile is not the port of entry, but that the port is defined in the act of 22d July, 1813, and includes the whole bay, with the rivers, creeks, and inlets emptying into the Gulf of Mexico.

That whether the cargoes were contracted for before or after the arrival of the vessel in the bay was unimportant, as in either case, they remained wholly at the risk of the shipper or his consignee, until they were safely delivered to the lighters of Waring in the Bay of Mobile.

That until this delivery, neither the condition nor the weight or number of the sacks could be ascertained, and until this was done, it remained uncertain what was to be paid.

That the rule is the same in the civil as in the common law, 'Res, perit domino.' Here the risk of Waring did not attach, until the importation had become complete by the arrival of the vessel at her destined port. He could in no sense be regarded as the owner until his rish commenced.⁴

The case of Brown v. Maryland, so much relied on by opposite counsel, maintains the right of the importer to sell free from all State intervention, but it also decides that when the importer has sold, the subject of the sale is taxable in the hands of the purchaser, and it is of no sort of consequence whether it retains the original form in which it was imported or not. Merchandise, in the original package, once sold by the importer, is taxable as other property.⁵

If the act of importation was complete, which it here was, before Waring became the owner of the goods, there was necessarily an importer. The exemption from State taxation applied to him. It cannot be applied to his vendee, without a double exemption; such an exemption would be absurd.

Mr. Justice CLIFFORD delivered the opinion of the court.

Merchants and traders, engaged in selling merchandise in the city of Mobile in the State of Alabama, are required by an ordinance passed by the corporate authorities to pay a tax to the city equal to one-half of one per cent. on the gross amount of their sales, whether the merchandise was sold at private sale or at public auction; and if they were so engaged the six months next preceding the 1st day of April, 1866, they were also required, within fifteen days thereafter, to return, under oath, to the collector of taxes, the gross amount of their sales during that period of time; and the provision was, that if any such merchant or trader neglected or failed to make such return, he should be subject to such a fine, not exceeding fifty dollars per day, as the mayor of the city might impose for each day's failure or refusal.

Sales of merchandise were made by the complainant within that period to a large amount, and he was duly notified that he was required to make return, under oath, of the gross amount of such sales, and having neglected and refused to comply with that requirement within the time specified in the ordinance, the mayor of the city caused a summons to be issued and duly served, commanding the complainant to appear before him, as such mayor, to answer for such neglect, but he refused to obey the commands of the summons, and thereupon a warrant was issued, and he was arrested and brought before the mayor to answer for such contempt; and, after hearing, he was sentenced to pay a fine of fifty dollars for a breach of the before-mentioned ordinance. Subsequently, a second notice of a similar character was given, and the complainant still neglecting and refusing to make the required returns, he was again summoned to appear before the mayor to answer for the neglect, but he refused a second time to obey the commands of the precept, and, thereupon, such proceedings were had that he was again found guilty of contempt and was sentenced to pay an additional fine of fifty dollars.

Regarding these proceedings as unwarranted, the complainant filed a bill in equity against the mayor and tax-collector of the city, in the local Chancery Court, in which he prayed that the respondents might be enjoined from collecting the fines adjudged against him, and from any attempt to collect the tax, and that the tax might be adjudged to be null and void. Proofs were taken and the parties were heard, and the final decree of the Chancellor was, that the complainant was entitled to the relief asked, and that the injunction should be made perpetual; but that decree, on the appeal of the respondents to the Supreme Court of the State, was, in all things, reversed, and the Supreme Court entered a decree that the bill of complaint should be dismissed. Whereupon the complainant in the Chancery Court sued out a writ of error, under the 25th section of the Judiciary Act, and removed the cause into this court.

Exemption from State taxation in this case is claimed by complainant upon the ground that the sales made by him were of merchandise, in the original packages, as imported from a foreign country, and which was purchased by him, in entire cargoes, of the consignees of the importing vessels before their arrival, or while the...