into ports of the State. Such laws are in direct violation of the provisions of the United States constitution, which confers upon the national Congress the exclusive power of regulating foreign commerce and commerce between the States, and which prohibits the States from imposing import duties and exports.1 The cases of Smith v. Turner and Norris v. City of Boston, known as the Passenger Cases, here cited, arose in this way: New York passed a law requiring for hospital purposes the payment of a tax by the master of every vessel from a foreign port, for himself and each cabin passenger, one dollar and fifty cents; for each steerage passenger, mate, sailor, or mariner, one dollar. And from the master of each coasting vessel, for each person on board, twenty-five cents; except coasting vessels from New Jersey, Connecticut and Rhode Island, which were required to pay for no more than one voyage in each month. Said law also purported to empower the master in all such cases to collect such sums from the persons on whose account he was thus assessed. Smith, the master of a British ship, having landed passengers from a foreign port in New York, and refusing to pay such tax, was sued by the health officer, Turner, for the amount thereof. To the right of recovery defendant demurred on the ground of the unconstitutionality of the statute. Judgment was rendered thereon by the highest State court of New York, for the plaintiff, after overruling the demurrer. The case having gone to the United States Supreme Court, it was there held, MCLEAN, Justice, delivering the opinion, that the statute assumed to regulate foreign commerce, and was void as in conflict with that clause of the United States constitution which confers upon the national Congress the exclusive power to regulate commerce with foreign nations and among the several States. In this connection the learned court say: "A tax or duty upon tonnage, merchandise, or passengers, is a regulation of commerce, and cannot be laid by a State except under the sanction of Congress and for the purposes specified in the constitution." Norris v. The City of Boston, grew out of similar legislation by the State of Massachusetts, assuming not only to levy and collect a tax upon passengers arriving by ship from foreign ports, but also to exclude from the privilege of landing certain of such passengers, as 'Passenger Cases, 7 How. 423. Passenger Cases, 7 How. 283, 408. lunatics, idiots and other specified objectionable persons. The plaintiff, Norris, an inhabitant of St. John, in the British. dominion, arrived in the port of Boston with and in command. of a schooner which had foreign passengers on board, and the tax being demanded on such passengers by the Massachusetts authorities, was, by the said commander, paid under protest, and suit was brought to recover back the amount paid, against the city of Boston in the common pleas court. Judgment was rendered for the defendant, which judgment was affirmed by the Supreme Court of the State. The Supreme Court of the United States held the law to be unconstitutional for like reasons as in Smith v. Turner, and both cases were by the Supreme Court of the United States, reversed.1 IV. STATE PROPERTY TAX OF VESSELS ENGAGED IN INTER-STATE COMMERCE. State Taxation at the Home Port. Though commerce between the States is not a subject of State taxation, yet the vehicles or instruments of local commerce used or engaged in carrying it on, as, for instance, steamboats or other means of transportation, are. Their situs is at the home port, and they are taxable by the State within which that port is situated just as other movable property is there taxable. Such home port is the port nearest to which the owner, husband, or managing agent usually resides in, in the district of their registry. They are not within the jurisdiction of the other States between whose ports or in whose waters they ply only temporarily, and are not there subject to State taxation any more than travelers of other States would be in passing through and stopping temporarily on business. Vessels thus employed do not become blended with the taxable interests or property of the States in which they temporarily touch, or do business, in their accustomed routes. In the language of HUNT, J., a vessel so employed is "engaged in inter-State commerce, with her home port still remaining unchanged and the property continuing unmixed with the permanent property of either State" so visited. Vessels thus engaged are free to come and 1 Passenger Cases, 7 How. 283, 408. Morgan v. Parham, 16 Wall. 471, 478; Hays v. Pacific Mail Steamship Co., 17 How. 596; St. Louis v. The Ferry Co., 11 Wall. 423; People v. free to go, and are not, in law, liable to be interfered with in the ports of the different States to which they ply, except as it respects such municipal and sanitary regulations of the local authorities as are not inconsistent with the constitution and laws of the general government, to which belong the regulation of commerce between the States. If this were not so, then aside from the indirect effect upon the inter-State commerce which the hindrance and delay, occasioned by claims to local taxation, might occasion, there would result inexplicable difficulties to the owners by the conflicting claims of taxation set up in the different States in whose ports they enter. The circumstances, in the case of Morgan v. Parham, were these: A vessel engaged in the coasting, or inter-State commerce, between Mobile and New Orleans, but which before so engaging was duly registered in the port of New York under the ownership of the plaintiff, Morgan, was seized for taxes by the tax collector of the city of Mobile for taxes levied upon her by said city. The owner, Morgan, brought an action of trespass for the seizure against the officer, and the cause being decided in favor of the defendant, and the legality of the tax asserted by the court, the case went to the supreme court of the United States, and judgment was there reversed, that court ruling as herein before stated that the vessel was taxable only at the home port of the owner. The case here cited of Hays v. The Pacific Steamship Co.2 was of a similar character, and originated out of an effort of the authorities of the State of California to tax the steamships of said company, registered in New York, and plying and carrying freight and passengers in connection between New York and San Francisco. The effort at taxation was held to be illegal. So of Ferryboats at Inter-State Ferries. So ferryboats belonging to a corporation of one State, employed and used in ferrying persons and property from and to such State, across a navigable river to and from another State, at the opposite shore of such river, and making such opposite shore a mere landing place and terminus for discharging and receiving persons and property so carried or to be carried across said river, are not subject to local taxation by the authorities of such latter State, or of any of its municipal governments of towns or cities at which said boats 'Morgan v. Parham, 16 Wall. 471; Hays v. Pacific Mail Steamship Co., 17 How. 596. 217 How. 596. 2 thus land. Their home situs is in the State where the corporation owning and thus employing them resides and exists, which is in the State wherein the corporation is by law created, and in that State only, while thus employed, they are liable as property to be taxed.3 The Wiggins Ferry Company, a private corporation created under the laws of the State of Illinois, was engaged in ferrying persons and property across the Mississippi river, between the Illinois shore of said river and the opposite shore thereof, in the State of Missouri. The boats, when not running, were kept at the Illinois shore, and when running, their stoppage at the Missouri shore was limited in time by the St. Louis city authorities, and was merely temporary, to put off and take on persons and property transported or to be transported across the river from one State to the other. But the boats were registered, under the United States laws, at the registry office in St. Louis. That city assumed the right to tax said boats as property, which was resisted by the ferry company by legal proceedings in the circuit court of the United States for the district of Missouri. Said circuit court of the United States held that the tax was illegal, and on error to the supreme court of the United States that court affirmed the decision of the court below, and held that as property the boats were taxable only in the State of Illinois, where, in fact, it appeared that a tax was paid upon them. SWAYNE, J., delivering the opinion of the court, says: "The owner was, in the eye of the law, a citizen of that State (Illinois), and from the inherent law of its nature could not emigrate or become a citizen elsewhere. As the boats were laid up on the Illinois shore when not in use, and the pilots and engineers who ran them lived there, that locality, under the circumstances, must be taken to be their home port. They did not so abide within the city (St. Louis) as to become incorporated with, and form a part of, its personal property. Hence they were beyond the jurisdiction of the authorities by which the taxes were assessed, and the validity of the taxes cannot be maintained." 'St. Louis . The Ferry Co., 11 Wall. 423, 432. 2 Ibid. 3 Ibid. 4 11 Wall. 431, 432. Citing here Hays v. Pacific Steamship Co., 17 How. 596; New Albany v. Meekin, 3 Ind. 481. Here citing Railroad Company v. Jackson, 7 Wall. 262. V. PILOTAGE. The regulation of pilotage of sea-going vessels in national waters of a State, though a subject which Congress has a right, under the national constitution, to assume and exercise the exclusive control of, is nevertheless one that may be exercised by a State until Congress shall see fit to act upon the subject.' When so acted on by Congress, the authority of the State retires and lies in abeyance until there is a recurrence of the occasion for its exercise.2 Half Pay when Service Declined. State laws regulating pilotage, where such occasion exists for them, are valid, and a provision that gives half pay to a pilot who is first to tender his service and is refused, is a reasonable regulation, that is enforcible in the United States court as arising out of the commercial marine, although the law upon which the claim to such pay is based be a statute passed by a State. Such right of recovery is not as for a tort, but as matter of contract. The law fixes the compensation for services and compels the pilot to offer to serve. If his service is declined, the same law fixes his compensation for the labor performed and time consumed, and risks incurred in going out, and implies a promise on the part of the ship owner or master to pay the same, and gives a lien on the vessel for the amount.s Jurisdiction of Federal Court. The jurisdiction of the Federal court over the subject is not by virtue of the State law, for a State law cannot confer jurisdiction on a national court. That jurisdiction is in virtue of the subject matter being of maritime concern, and the only effect of the State law is to invest the party with a right of action; that is, a right to recover the legal compensation fixed in such cases thereby. The enforcement thereof may be in any court competent to take jurisdiction of the subject matter. Hence this has sometimes been done in the State courts. 1 Cooley v. Wardens of Philadel phia, 12 How. 299; Ex parte McNiel, 13 Wall. 236; Gilman v. Philadelphia, 3 Wall. 713; Steamship Co. v. Port Wardens, 6 Wall. 31; Steamship Co. v. Joliffe, 2 Wall. 450. Ex parte McNiel, 13 Wall. 236, 240. Ex parte McNiel, 13 Wall. 236; Steamship Co. v. Joliffe, 2 Wall. 450. Ex parte McNiel, 13 Wall. 236, 243; Hobart v. Drogan, 10 Pet. 108, 120. |