court says:
"We are satisfied that the State of
California had no jurisdiction over these ves
sels for the purpose of taxation; they were not
properly abiding within her limits, so as to be
come incorporated with the other personal
property of the State; they were there but tem-
porarily, engaged in lawful trade and com-
merce, with their situs at the home port, and
where the owners were liable to be taxed for
the capital invested, and where the taxes had
been paid.'

Hays v. Steamship Co., 17 How., 599., (58 U. S., XV., 255).

It is thus established beyond a peradventure, that there is nothing in the character of a ves sel, or in the fact that she is engaged in carry ing on foreign commerce or commerce among the States, which exempts her from the power of taxation in a State where she belongs. A fortiori such exemptions cannot be claimed when the vessel is not only owned in the State, but is engaged in commerce exclusively within its limits.

The power then being adequate to tax this property, does the Act of the State become unconstitutional, because of the particular mode pointed out by it for ascertaining the value on which the tax is to be paid?

It would puzzle the ingenuity of counsel to assign a reason why there should have been engrafted on the Constitution an exemption from state taxation for property thus circum stanced. But, reasonable or unreasonable, it is asserted that such a provision exists.

unless the tax was voluntarily paid or some statutory conditions are annexed to the exercise of the right to sue, which were unknown at common law.

Where the party assessed voluntarily pays the tax he is without remedy in such an action, but if the tax is illegal or was erroneously as sessed, and he paid it by compulsion of law or under protest, or with notice that he intends to institute a suit to test the validity of the tax, he may recover it back in such an action, unless the legislative authority, in the jurisdiction where the tax was levied, has prescribed some other remedy or has annexed some other conditions to the exercise of the right to institute such a suit. Elliott v. Swartwout, 10 Pet., 150; Bend v. Hoyt, 13 Pet., 267.

On the 22d of February, 1866, the Legislature of Alabama passed a revenue Act, and therein, among other things, levied a tax "on all steamboats, vessels and other watercrafts plying in the navigable waters of the State, at the rate of $1.00 per ton of the registered tonnage thereof," to "be assessed and collected at the port where such vessels are registered, if practicable; otherwise, at any other port or landing within the State where such vessel may be." Sess. Acts, 1846, p. 7.

Five steamboats were owned by the plaintiffs, who were citizens of that State, doing business at Mobile under the firm name set forth in the record. All the steamboats were duly enrolled and licensed in conformity to the Act of Congress entitled "An Act for Enrolling and Licensing Ships and Vessels to be Employed in the Coasting Trade of the United States," and the record shows that at the time the taxes, which are the subject of controversy, were imposed and collected, all those steamboats were engaged in the navigation of the Alabama, Bigbee and Mobile Rivers, in the transportation of freight and passengers between the Port of Mobile and other towns and landings on said rivers, within the limits of the State, the said rivers being "waters navigable from the sea by vessels of ten or more tons burthen.' Stat. at L., 77.

No State shall, without consent of Congress, lay any duty of tonnage, keep troops or ships of war, enter into any agreement or compact with another State or with a foreign pow. er, or engage in war unless actually invaded," All the provisions of this section alike refer to subjects of general concern, in which the people and the several States are interested. The prohibition of the tonnage duty referred to is a corollary to the grant of the commercial power. It is part and parcel of the policy, which declares that "No preference shall be given in any regulation of commerce or rev-1 enue, to the ports of one State over those of another;" and which further provides that "Vessels bound to or from one State, shall not be obliged to enter, clear, or pay duties in another.

This is not a tax upon vessels without refer ence to the place of ownership, but is one confined to those only owned in and engaged in the trade of the State, and subjects it to the same contribution which all other property in the State is made to bear.

Why should the State be prohibited from holding this property of its citizens liable to taxation, or why should the consent of Congress be necessary in a matter where the rights and interests of no others are concerned than those of the State and its citizens?

Perry v. Torrence, 8 Ohio, 525; Cooley v. Wardens, 12 How., 314.

Mr. Justice Clifford delivered the opinion of the court:

Assumpsit for money had and received is an appropriate remedy to recover back moneys illegally exacted by a collector as taxes, in all jurisdictions where no other remedy is given,

Such steamboats are deemed ships and vessels of the United States, and as such are en titled to the privileges secured to such ships and vessels by the Act of Congress providing for enrolling and licensing ships and vessels to be employed in that trade. 1 Stat. at L., 305.

Annexed to the agreed statement exhibited in the record is a schedule of the taxes imposed and collected, in which are also given the names of the respective steamboats, their tonnage and their value, and the proportion assessed by the county as well as that imposed by the State. Committed as the assessments were to the same person to collect, it is immaterial whether the taxes were assessed for the State or for the county, as the collector demanded the whole amount of the plaintiffs, and they paid the same under protest, the sums specified as county taxes including also a charge made by the collector for fees in collecting the money.

Separately stated the taxes were as follows: On the steamboat C. W. Dorrance, 321 tons burden, valued at $5,000, taxed, state tax $321, county tax $322.25; Flirt, tonnage 214 tons, valued at $2,500, taxed, state tax $214, county tax $215.25; Cherokee, tonnage 310 tons, val

But

ued at $15,500, taxed, state tax $310, county | lay any duty of tonnage, nor can they levy any tax $311.25; Coquette, tonnage 245 tons, valued imposts or duties on imports or exports, except at $4,000, taxed, state tax $245, county tax what may be absolute necessary for executing $246.25; St. Charles, tonnage 331 tons, valued their inspection laws, as without the consent of at $15,000, taxed, state tax $331, county tax Congress they are unconditionally prohibited $332.25; showing that the county tax as well from exercising any such power. Outside of as the state tax is $1 per ton of the registered those prohibitions the power of the States to tonnage of the steamboats, exclusive of the fecs tax extends to all objects within the sovereign charged by the collector. power of the States, except the means and instruments of the Federal Government. ships and vessels owned by individuals and belonging to the commercial marine are regarded as the private property of their owners, and not as the instruments or means of the Federal Government, and as such, when viewed as property, they are plainly within the taxing power of the States, as they are not withdrawn from the operation of that power by any express or implied prohibition contained in the Federal Constitution. Nathan v. Louisiana, 8 How., 82; Howell v. Maryland, 3 Gill, 14.

Demand of the taxes having been made by the collector, the plaintiffs protested that the same were illegal, but they ultimately paid the same to prevent the collector from seizing the steamboats and selling the same in case they refused to pay the amount. They paid the sum of $2,848.25 as the amount of the taxes, fees and expenses demanded by the defendant, and brought an action of assumpsit against the col lector in the Circuit Court of the State for Mobile County to recover back the amount, upon the ground that the sum was illegally exacted. Judgment was rendered in that court for the plaintiffs, the court deciding that the facts dis closed in the agreed statement showed that the taxes were illegal, as having been levied in violation of the Federal Constitution. Appeal was taken by the defendant to the Supreme Court of the State, where the parties were again heard, but the Supreme Court of the State, differing in opinion from the circuit court where the suit was commenced, rendered judgment for the defendant, whereupon the plaintiffs sued out a writ of error and removed the record into this court for re-examination.

Argument, therefore, to show that they may be taxed as other property belonging to the citizens of the State is hardly necessary, as the opposite theory is indefensible in principle, contrary to the generally received opinion, and is wholly unsupported by any judicial determination. Direct adjudication to support that proposition is not to be found in the reported decisions of this court, but there are several cases which concede that such a tax, if levied by a State, would be legal, and no doubt is entertained that the concession is properly made. Passenger Cases, 7 How., 402; Hays v. Steamship Co., 17 How., 598 [58 U.S., XV., 255].

Such a concession, however, does not advance the argument much for the defendant, as it is not only equally true but absolutely certain that no State can, without the consent of Congress, lay any duty of tonnage; and the question still remains to be determined whether the taxes in this case were or were not levied as duties of tonnage, as it is clear, if they were, that the judgment of the state court must be reversed.

I. Two principal objections were made to the taxes by the plaintiffs, as appears by the agreed statement, which is made a part of the record. (1) That the taxes as levied and collected were in direct contravention of the prohibition of the Constitution, that "No State shall, without the consent of Congress, levy any duty of tonnage," and the proposition of the plaintiffs was and still is that the Act of the Legislature of the State directs in express terms that such taxes shall be levied on all steamboats, vessels and Taxes levied by a Sstate upon ships and vesother water-craft plying in the navigable wa sels owned by the citizens of the State as propters of the State. (2) That the State law levy-erty, based on a valuation of the same as proping the taxes violates the compact between the erty, are not within the prohibition of the ConState and the United States, that "All navigable stitution, but it is equally clear and undeniable waters within the said State shall forever re- that taxes levied by a State upon ships and vesmain public highways, free to the citizens of sels as instruments of commerce and navigation the said State and of the United States, without are within that clause of the instrument which any tax, duty, impost or toll therefor imposed prohibits the States from levying any duty of by the said State." 3 Stat. at L., 492. tonnage, without the Consent of Congress; and it makes no difference whether the ships or ves sels taxed belong to the citizens of the State which levies the tax or to the citizens of another State, as the prohibition is general, withdrawing altogether from the States the power to lay any duty of tonnage under any circumstances, without the consent of Congress. Gibbons v. Ogden, 9 Wheat., 202; Sinnot v. Davenport, 22 How., 238 [63 U. S., XVI.,246]; Foster v. Dav enport, 22_How., 245 [63 U. S., XVI., 248]; Perry v. Torrence, 8 Ohio, 524.

1. Congress has prescribed the rules of admeasurement and computation for estimating the tonnage of American ships and vessels. 13 Stat. at L., 69, 444.

Viewed in the light of those enactments, the word "tonnage" as applied to American ships and vessels, must be held to mean their entire internal cubic capacity, or contents of the ship or vessel expressed in tons of one hundred cubic feet each, as estimated and ascertained by those rules of admeasurement and of compu tation. Alexander v. Railroad Co., 3 Strob. 598, Power to tax, with certain exceptions, resides with the States independent of the Federal Government, and the power, when confined with in its true limits, may be exercised without restraint from any federal authority. They can not, however, without the consent of Congress,

Annual taxes upon property in ships and vessels are continually laid, and their validity was never doubted or called in question, but if the States, without consent of Congress, tax ships or vessels as instruments of commerce, by a ton. nage duty, or indirectly by imposing the tax upon the master or crew, they assume a juris

""

having the list must at once proceed to assess | of any vessel, without the consent of Congress, the same, and if the tax is not paid on demand for any purpose.' Precisely the same rule was he must seize such steamboat, etc., and after applied by that court to vessels duly enrolled twenty days' notice, as therein prescribed, shall and licensed for the coasting trade, and which sell the same, or so much thereof as will pay were exclusively engaged in the towage and the taxes and expenses for keeping and costs. lighterage business in the bay and harbor Sess. Acts, 1866, pp. 7, 31. of Mobile, carrying passengers and freight be tween the city and vessels at the anchorage below the bar. Lott v. Morgan, 41 Ala., 250. Some stress was laid in that case upon the circumstances that the vessels taxed were engaged in transporting cargoes to and from vessels engaged in foreign commerce, bound to that port, but it is quite clear that that circumstance is entitled to no weight, as the prohibition extends to all ships and vessels entitled to the priv ileges of ships and vessels employed in the coasting trade, whether employed in commercial intercourse between ports in different States or between different ports in the same State. People v. S. & R. R. R. Co., 15 Wend., 131; Steamboat Co. v. Livingston, 3 Cow., 743.

Legislative enactments, where the language is unambiguous, cannot be changed by construction, nor can the language be divested of its plain and obvious meaning. Taxes levied under an enactment which directs that a tax shall be imposed on steamboats at the rate of $1 per ton of the registered tonnage thereof, and that the same shall be assessed and collected at the port where such steamboats are registered, cannot, in the judgment of this court, be held to be a tax on the steamboat as property. On the contrary, the tax is just what the language imports, a duty of tonnage, which is made even plainer when it comes to be considered that the steamboats are not to be taxed at all unless they are "plying in the navigable waters of the State" showing to a demonstration that it is as instruments of commerce and not as property that they are required to contribute to the revenues of the State.

Such a provision is much more clearly with in the prohibition in question than the one involved in a recent case decided by this court, in which it was held that a statute of a State en acting that the wardens of a port were entitled to demand and receive, in addition to other fees, the sum of $5 for every vessel arriving at the port, whether called on to perform any service or not, was both a regulation of commerce and a duty of tonnage, and that as such it was unconstitutional and void. Steamship Co. v. Port Wardens, 6 Wall., 34 [73 U. S., XVIII., 750].

Formerly harbor-masters, at the Port of Charleston, by an ordinance of that City, might exact one cent per ton, once in every three months, of every steam-packet or other vessel from certain adjoining States trading steadily there and performing regular successive voyages to that port, but when the question came to be presented to the Court of Errors of that State, the judges unanimously held that the exaction was a duty of tonnage, and that, as such, the provision was unconstitutional and void. Alexander v. Railroad, 3 Strob., 598.

Taxes in aid of the inspection laws of a State, under special circumstances, have been upheld as necessary to promote the interests of commerce and the security of navigation. Cooley v. Port Wardens, 12 How., 314.

Laws of that character are upheld as conSpeaking of the same prohibition, the Chief templating benefits and advantages to comJustice said in that case that those words, in their merce and navigation, and as altogether distinct most obvious and general sense, describe a duty from imposts and duties on imports and exproportioned to the tonnage of the vessel-a ports and duties of tonnage. Usage, it is said, certain rate on each ton-which is exactly what has sanctioned such laws where Congress has is directed by the provision in the tax Act be- not legislated, but it is clear that such laws bear fore the court, but he added that it seems plain, no relation to the Act in question, as the Act unif the Constitution be taken in that restricted der consideration is emphatically an Act to sense, it would not fully accomplish the intent raise revenue to replenish the treasury of the of the framers, as the prohibition upon the State and for no other purpose, and does not States against levying duties on imports or ex- contemplate any beneficial service for the steamports would be ineffectual if it did not also ex-boats or other vessels subjected to taxation. tend to duties on the ships which serve as the vehicles of conveyance, which was, doubtless, intended by the prohibition of any duty of tonnage. "It was not only a pro rata tax which was prohibited, but any duty on the ship, whether a fixed sum upon its whole tonnage, or a sum to be ascertained by comparing the amount of tonnage with the rate of duty.'

Assume the rule to be as there laid down and all must agree that "the levy of the tax in question is expressly prohibited, as the schedule shows that it is exactly proportioned to the registered tonnage of the steamboats plying in the navigable waters of the State.'

Strong as the language of the Chief Justice is in that case, it is no stronger than the language employed by the Supreme Court of the State to which this writ of error was addressed in the case of Sheffield v. Parsons, 3 Stew. & P., 304, in which the court in effect says that no tax, custom or toll can be levied on the tonnage

Beyond question the Act is an Act to raise revenue without any corresponding or equivalent benefit or advantage to the vessels taxed or to the ship-owners and, consequently, it cannot be upheld by virtue of the rules applied in the construction of laws regulating pilot dues and port charges. State v. Charleston, 4 Rich., 286; Benedict v. Vanderbilt, 1 Rob. N. Y., 200.

Attempt was made in the case of Alexander v. Railroad [supra], to show that the form of levying the tax was simply a mode of assessing the vessels as property, but the argument did not prevail, nor can it in this case, as the amount of the tax is measured by the tonnage of the steamboats and not by their value as property.

Reference is made to the case of The Union Towboat Co. v. Bordelon, 7 La. Ann., 195, as asserting the opposite rule, but the court is of a different opinion, as the tax in that case was levied, not upon the boat but upon the capital

of the company owning the boat, and the court in delivering their opinion say the capital of the company is property, and the Constitution of the state requires an equal and uniform tax to be imposed upon it with the other property of the state for the support of government.

For these reasons the court is of opinion that the state law levying the taxes in this case is unconstitutional and void, that the judgment of the state court is erroneous, and that it must be reversed, and having come to that conclusion the court does not find it necessary to determine the other question.

Judgment reversed, with costs, and the cause remanded for further proceedings in conformity to the opinion of the court.

Cited 19 Wall., 584; 20 Wall., 581; 93 U. S., 102, 103; 94 U. S., 244; 95 U. S., 86, 491; 99 U. S., 277, 284: 105 U. S., 465: 107 U. S., 376; 3 Dill., 456; 6 Biss., 510; 44 Ind., 195; 27 Am. Rep., 555 (9 W. & Va., 170).

in that State; that they were the owners of twelve steamboats, as alleged in the bill of complaint, filed by them on the 12th of October, 1867, in the Chancery Court for that county, and that the respondent is the Collector of taxes for that county, and a resident of the City of Mobile.

Coming to the merits, the complainants allege that the respondent, as such collector, pretends and insists that they are liable under the laws of the State to pay a state tax of $1 per ton of the registered tonnage of the said several steamboats, without any regard to their value as property: that he also claims that he, as such collector, is authorized by law to collect that amount of the complainants, and also another sum equal to seventy-five per cent. of the state tax, for the county, and also another sum, equal to twenty five per cent. of the state tax, as a school tax, making in all a tax of $2 per ton of the registered tonnage of the said several steamboats, exclusive of the fees of the collector and assessor, amounting to $1.50 on each

THE MOBILE TRADE COMPANY, Piff. in of the said steamboats. All of the taxes in con

Err.,

V.

ELISHA B. LOTT.

troversy in this case were levied by virtue of an Act of the Legislature approved February 19, 1867, entitled "An Act to Establish Reve

(See S.C., "State Tonnage Tax Cases," 12 Wall., nue Laws for the State," and it is conceded that

221-226).

States cannot levy a duty of tonnage on

extent of prohibition.

Preceding case of Cox v. Lott, followed.

or vessels.

The States cannot ievy a duty of tonnage on ships The prohibition extends to ships or vessels employed in commerce between ports, and places in [No. 147.]

the same State.

Argued Apr. 14, 1871.

Decided Oct. 30, 1871.
IN ERROR to the
N ERROR to the Supreme Court of the

Sess.

the provisions, so far as respects this controvessels-versy, are the same as the Act under which the taxes were levied in the preceding case. Acts 1867, p.645; Rev. Code, 1867, p. 169, art. II., sec. 434, par. 11. Bills of the taxes, it is alleged, were rendered to the complainants, but it is not necessary to enter into these details, except to say that the taxes were levied in the same form as in the preceding case, and claims that he is authorized, in case they refuse the complainants allege that the respondent to pay the taxes, to seize the respective steamboats, and that he may proceed, after twenty days' notice, to sell the same, or as much thereof as will pay the taxes, expenses and costs. They, the complainants, deny the legality of the taxes and allege that the respondent, as such collector, threatens to seize the said steamboats and to proceed to sell the same to pay the taxes, expenses and costs, which, they insist, would be contrary to equity. Being without any remedy at law, as they allege, they ask the interposition of a court of equity, and allege that the taxes are illegal upon two grounds, which are as follows:

The bill in this case was filed in a chancery court of the County of Mobile, Alabama, by the plaintiff in error, for an injunction against the collection of certain taxes. Å decree having been entered in favor of the complainant, the respondent took an appeal to the Supreme Court of the State, by which the said decree was reversed. Whereupon the complainant sued out this writ of error.

The case is further stated by the court. For abstract of arguments upon this case, see the case preceding, with which this case was argued.

Messrs. P. Hamilton and J. A. Campbell, for plaintiff in error.

Mr. P. Phillips, for defendant in error.

Mr. Justice Clifford delivered the opinion of the court:

Much discussion of the questions involved in this record will not be required, as they are substantially the same as those presented in the preceding case, which have already been fully considered and definitely decided.

Submitted, as the case was, in the court below, on a demurrer to the bill of complaint, and on the answer of the respondent, it will be necessary to refer to the pleadings to ascertain the nature of the controversy, by which it appears that the complainants are a Corporation, created by the Legislature of the State of Alabama, having their place of business at Mobile,

1. That the tax is a duty of tonnage, levied in violation of the 10th section of the 1st article of the Constitution, and in support of that allegation they allege that all the steamboats, at the time the taxes were levied, were, and that they still are, duly enrolled and regularly licensed to engage in the coasting trade under and in pursuance of the Revenue Laws of the United States, and that all the duties imposed upon the steamboats by the laws of the United States have been paid and discharged.

2. That the law of the State levying the taxes is in violation of the Act of Congress passed to enable the people of Alabama Territory to form a Constitution and State Government, and for the admission of the same into the Union, and of the ordinance passed by the people of the Territory accepting that provision. 3 Stat. at L., 492. Wherefore they pray for process and for an injunction. Process was issued and