North River Steam Boat Co. v. Livingston

took time to consider the question till this day; and now gave judgment.

The exclusive right granted by this state to Robert R. Livingston and Robert Fulton, to navigate all waters within its jurisdiction, with boats moved by fire or steam, so far as that right comprehends navigation of the Hudson between the cities of New York and Troy, is now vested in the north river steam boat company.

The defendant is the possessor of a steam boat named the Olive Branch ; and the bill states, that this boat is now em- , ployed by him, in navigation and the transportation of passengers, between the cities of New York and Albany and intermediate places, in violation of the exclusive right of the complainants. Upon this bill, the complainants ask an injunction to restrain the defendant from navigating the Olive Branch between the cities of Albany and New York.

On the part of the defendant, it appears, that the Olivé Branch has been enrolled, and has a license for carrying on the coasting trade.

The courts of this state have heretofore determined, that the exclusive grant to Livingston and Fulton, is in all respects, valid. One of the decisions made by the highest court of thisj state, declaring that grant valid, has been recently reversed, \ by the supreme court of the united states : and the opinion j and decree of the supreme court, are now before this court, as j they are before the public. :

The facts constituting the case of Gibbons against Ogden, decided by the supreme court, were, that two steam boats, ha*199ving licenses for the coasting trade, were employed in navigation between a port in New Jersey and a port in this state. The supreme court has decided, that these boats were authorised to pass from one state to the other, and for that purpose, to navigate the waters of this state, notwithstanding the grant of this state to Livingston and Fulton. That court has determined, that the exclusive grant of this state is void, against steam vessels having licenses for the coasting trade, when such vessels arrive in this state from another state, and when they proceed hence to another state. This was the direct question before that tribunal; this question has received a direct decision ; and I do not perceive, that any proposition more comprehensive, has been determined by the supreme court.

In the opinion given by the supreme court, the effect of a license for the coasting trade is discussed, and its efficacy, in respect to a voyage from one state to another, is determined : but the same opinion considers the act concerning the coasting trade, as an exercise of the power of the congress to regulate commerce among the states; and it admits the distinction between commerce among the states, and the internal commerce of a particular state. If a license confers a right to navigate from state to state, this proposition decided the cause between Gibbons and Ogden, and rendered the decision of any other question, unnecessary. If indeed, a license gives a right to navigate from one place to another in all cases, and as well where the voyage is wholly in the same state, as where it is partly in different states, this proposition would also have decided that cause; but this proposition has not been announced, while the right to navigate from one state to another, has been distinctly adjudged. It is not supposed, that the supreme court intended to adjudge the grant of this state null, to any extent greater than was necessary for the decision of the cause before it.

No court of justice can intend or desire, that the reasons given for its decision, should be disjoined from the facts before it, and the question which it is bound to decide. An exposition of the reasons of a court, is justly referred to the case before it 5 its arguments and all its expressions, are considered as used in application to the facts of the case, and to some ul*200tímate proposition which the court plainly affirms or expressly denies. "

f The decree and the opinion of the supreme court then determine, that the grant of this state to Livingston and Fulton, ;s invalid, in respect to navigation between this state and any other state, by vessels licensed for the coasting trade. This seems to me to be the result of all the views of that court; the only conclusion which it intended to deduce from all its arguments and illustrations.

The grant to Livingston and Fulton having been adjudged valid in its full extent, by the highest tribunal of this state ; and being now adjudged void, in respect to navigation between this state and any other ; I might briefly declare, that navigation within the state, by steam vessels not arriving from or proceeding to another state, remains subject to the grant of the state and former decisions establishing its validity. But in the. existing posture of this controversy, a conclusion so technical and summary, would not be sufficient: and I must examine those questions of the controversy, which, in its present state, are really new and demand a new decision.

Since the existing government of the union has been in operation, the greater part of its revenue has been levied by duties on imports ; another portion of its revenue has been raised by duties on the tonnage of vessels : and the laws of the united states, have blended revenue, commerce and navigation, very intimately with each other.

I- When revenue is raised from commerce, the measure acting Ion the subject taxed, becomes in a greater or less extent, a ¡regulation of commerce itself, as well as a measure of revenue. Such is often the intention of the legislature ; but the same legislature having also a distinct power to regulate commerce, exercise it, with views .entirely distinct from revenue. Navigation is an instrument of commerce; and as such, it be regulated by a power competent to regulate the com-in which it is employed.- Vessels are also subject to taxation j and thus, commerce may be indirectly regulated, taxing one of its instruments. The commerce in which J 0 vessels are employed, may be taxed; the vessels employed . _A _t , _ - . . , may be specifically taxed; and taxes oí both kinds, may con*201cur. In any of these cases, the tax and proper regulations for its collection, have, to some extent, the effect of regulations.

*201Commerce may then be regulated directly, without taxa-. tion, and indirectly, by taxation; but these methods differ widely from each other. When commerce is regulated by taxation, the result is produced, not by establishing rights of commerce, but by imposing burdens. These burdens, while they produce revenue, also produce other consequences. They may also operate upon foreign commerce, upon domestic commerce, upon internal manufactures, and upon various branches of industry. Many great interests are, or may be affected, by these burdens; and the consideration of such effects, is embraced in the views of public policy, which induce the legislature to impose the tax. But all such results are, still, mere consequences, which in the course of political economy, flow from the operation of a tax. The legislature establish the tax, and leave it to produce the indirect consequences Which may follow from its operation. Such laws are, in their positive enactments, merely revenue laws.

Provisions to enforce the due payment of the tax, are also necessary; and regulations for this purpose are made, sometimes in the law imposing the tax, but usually, by other distinct laws. These laws control the commerce taxed, for the sole purpose of enforcing the collection of the tax; they regulate the commerce merely to restrict it; and the regulations for collection, are also revenue laws, in their enactments.

When complex regulations, apparently embracing revenue^ commerce and navigation, are to receive an interpretation, the true sense of such regulations maybe elucidated, by inquiring^ whether they are intended to raise revenue and to regulate ev 0 commerce indirectly and so far only, as may be necessary for . , the main purpose or revenue, or to regulate commerce directly, for purposes distinct from revenue, and in virtue another nower ‘ anomer powei.

The first exertion of the taxing power of the union, was to impose duties on merchandise imported from foreign . . " , 0 tries; and the next was, to impose duties on the tonnage of seis. Duties on tonnage, were imposed by an act of the twen*202tleth day of July, 1790. By that act, vessels ofthe united states, employed in trade between one part of the united states and another, are taxed by a duty of six cents on each ton, upon each entry or voyage, with some exceptions; but where the yess.el has a license to trade between the different districts of unite<i states, or to carry on the fisheries, this duty is paid only once a year.

*202. The law concerning the coasting trade, now m force, was on the eighteenth day of February, 1793. It is a body of provisions, which upon a first view, seem to result, not wh°Uyi from any one of the specified powers of the congress. of its regulations, are evidently traced to the power to collect duties and imposts; in some respects, it'may rest upon the power to regulate commerce with foreign nations ; and in Sb-1116 others, it may regulate commerce among the states,

/ Ip enacting the law concerning the coasting trade, one great . ”, object oí tile congress, was, to exclude foreign vessels from between the different parts of the united states, The marine of this country is a great arm of national strength; cherish it, has been a high object of national policy ; and this law was intended to promote that object, by giving the navigation employed in the coasting trade, and the benefits of that navigation, exclusively to citizens. A vessel to he regis^red or enrolled, must, except in a few cases, be built within % f united states ; and must in all cases, be wholly the. property of citizens of the united states. The first section of this enacts, that vessels enrolled and licensed, and no others, shall he deemed vessels of the united states, entitled to the privileges °f vessels employed in the coasting trade: and the sixth section subjects vessels which are neither registered nor enrolled and licensed, and found trading between any two places in this country, to forfeiture in some cases, and in others, to the fees and tonnage imposed on foreign vessels.

The coasting trade is confined to vessels of the united ; and they are either registered vessels or vessels enroll-an<l licensed.. Both registered vessels and licensed vessels tjie same great qualifications, construction within the united states, and property wholly in citizens : but while x v v </ both these classes of vessels have an equal right to the coast*203ing trade, they do not participate in it, on terms of equal advantage. Registered vessels are charged with the duty six cents a ton, on each coasting voyage, while licensed vessels, usually performing numerous voyages in the course of a year, are subject to this duty, only as an annual tax. The difference of tonnage duties charged on vessels of the two classes, is the sole reason, that registered vessels are less employed m the coasting trade, than licensed vessels; and even under a duty more burdensome, a portion of the coasting trade, is performed by registered vessels. In the different duties, consists the advantage which licensed vessels have over registered vessels in the coasting trade. A privilege is a peculiar advantage, an immunity : and the privileges of vessels licensed for the coasting trade, consist first, in the exclusion of foreign vessels, an advantage which is common to licensed vessels and registered vessels ; and next, in the advantage given to licensed vessels over registered vessels by a lower duty. These are the privileges of licensed vessels; the peculiar advantages which they enjoy over all other vessels ; and these are the privileges of licensed vessels, intended by this law.

Another great object of the law concerning the coasting1 trade, was, to provide, that this trade should be conducted with security to the revenue. Duties on imports, had already been imposed : and a system of collection adapted to imporA ' 1,i 1 1 tations on their first arrival in the ordinary course of foreign commerce, had been established. But the coasting trade takes place by sea, and along all the coasts of the united states; it takes place from the sea to internal waters; it conveys through all the internal waters of the country, foreign merchandise subject to duties : and without suitable • i i zi* i r this trade would afford easy means of evading the duties on imports. The regulations adapted to the collection of duties upon importations arriving in the regular course of foreign commerce, were inapplicable to the coasting trade, and did not profess to control it. The coasting trade was therefore placed under the control of the officers appointed to collect the duties on imports; and it was subjected to such restrictions as .were deemed necessary for the security of the revenue. Most of the regulations of the coasting trade, are clearly adapted *204to this and no other object. The bonds, manifests, reports,' permits and minute details, which form so great a part' of the provisions of this law, are obviously intended to prevent evasions of the duties on imports. The security taken, that tjie vessej shall not be employed within two years in any trade by which the revenue shall be defrauded; the oath taken by the master, to the same effect; the various provisions concerning foreign merchandise subject to duty; the different regulations provided for different cases, manifestly because the danger to the revenue, is in some of those cases greater, and in others less; all, show, that the object of these various provisions, is to secure the revenue.

Such, were the great and general purposes of this law; and aUjts provisions are adapted to these objects.

j The national character of a vessel, as built in this country * * ** belonging to citizens of the united states, is the essential for the coasting trade ; and that character is ascertained by the register or by the enrolment. But this is not the sole qualification required for vessels entitled to all the privileges of the coasting trade. After the enrolment and before a license can issue, the tonnage duty must be paid; the bond concerning the use of the license, must be given; and the oath of the master that the license shall not be abused, must be taken. When these requisites have taken place, the license is issued. It is an official certificate, that there has been a due compliance with those requisites of law, which succeed the enrolment, and are preliminary to the license; and it completes and declares the qualifications of the vessel, for engaging in the coasting trade, with the privileges which have been mentioned.

: Another great object of the license, is to subject the vessel, .'wherever found, to the effectual control of the laws ■ and the {public officers. The license is intended to accompany the i vessel, and to be in- possession of the master, who has taken j an oath concerning its use ; he is bound to exhibit it to any officer of the revenue, upon demand; and it is limited to one year, because the tonnage duty on these vessels, is payable . annually, and for the sake of the control and security, which *205are afforded by a new bond, a renewed oath and a new license.

Thus, the objects of the license, are, to give an official proof of the facts which it recites; to declare the vessel fully qualified for the coasting trade and its privileges; to secure the payment of the annual tax on the vessel; and to provide an effective control over an employment, which greatly exposes the revenue from imports, to evasions and frauds : and these seem to be the sole objects, which the legislature contemplated, as ends of the license.

But it is said, that the license is also, a commission or authority ; and so considered, it is a commission to carry on the coasting trade. The license itself, gives no definition of the coasting trade.

What is the coasting trade intended by this law ? As oppo- ° ..... sed to foreign commerce, and distinguished from commerce by land, these words may be sufficiently definite; but in all other respects, they are vague. The restrictions to which the coasting trade is subjected, afford an indirect description of particular operations, to which those restrictions are applied j and in no other respect, is the coasting trade defined. But : for the purposes of this law, greater accuracy was not neces-h sary. When this law was enacted, an unrestrained freedom of intercourse between the states and all parts of the nation, existed; and the object of the congress, was, to regulate and limit that freedom, by restrictions upon navigation, intended to promote the maritime strength of the nation and to secure the revenue. The coasting trade intended, was therefore a commerce then existing without restraint; it was lawful commerce ; such commerce as then was or might afterwards be carried on, according to laws which the congress or the states, in virtue of their respective powers, might enact. As no impediment to free intercourse, existed, none was removéd. Hence, the coasting trade and the fisheries, received no definition. Hence, registered vessels were left, as they are left to this day, with a right to carry on the coasting trade, resting on the freedom to navigate and trade, in every manner not prohibited. Hence, the right of registered vessels in this respect, is recognised by the act concerning the coasting trade; *206but is not declared or treated as a right given by that act. But the coasting trade and the fisheries were subjected to certain regulations : and if those regulations can have full and consistent effect as limitations, it would be against all reason, to consider them as a grant of rights.

When any intercourse is regulated, it is supposed, that the intercourse will or may take place. The fact of an intercourse existing or expected, is recognised by a regulation concerning it: and the regulation may either declare and define the right of intercourse, or it may merely impose restrictions, without giving any new right to the intercourse itself. Laws for the collection of revenue, give rights and impose Obligations; but the rights are given to the government, and obligations are imposed on the citizen. The various regulations made to enforce the collection of taxes, consist of methods, checks and sanctions, giving auxiliary rights to the government, and imposing farther obligations upon persons, and upon things taxed or used in an employment taxed, The due collection of the revenue, being the purpose of such regulations, they are authorities to the public officers, while to ° J _1 the citizen, they are restraints upon his conduct.

j~ A restriction intended to control the exercise or prevent an ¡¿abuse of aright, is not a grant of that right. An example will illustrate. The laws require, that goods subject to duty, shall not be landed from the vessel importing them, without a permit. This regulation implies, that the goods may be landed with a permit; but the right of the owner to land them, is not conferred by this restriction. That right is derived frotó, ■another source, from the laws of property; and it may be variously modified by the laws which give and govern the right: The permit to land the goods, indeed, gives a special right against the public and the revenue officers. It declares that the duties have been" paid, and removes from the case; the operatiop of the revenue laws ; it gives that exemption from the operation of a law, which results from a compliance with its requisites: and if such an exemption is denominated a right, it is a right of mere exemption, which does not determine the nature or extent of any other right. The regulation requiring that goods shall not be landed without a permit; and every *207purpose for which it is established, are fully satisfied by this construction. While therefore, such a restriction supposes a right or a freedom to exist, it gives neither; and still less, can it be considered a grant of a definite and absolute right of commerce. Numerous regulations of revenue, navigation and commerce, are entirely of this character.

Such also, are the regulations of the act concerning the coasting trade. This law is a system excluding foreign vessels from the coasting trade, and subjecting the citizens of the united states, to restrictions in their pursuit of this employment. It leaves the right of the citizens to this employment, where that right was found by this law; that is to say, upon the basis of a free and open occupation, a right to do all things not forbidden by the laws.

An act of the second day of March 1819, makes some new regulations and removes some of the restraints upon the coasting trade between states, imposed by the former law. This act illustrates the questions now considered, as it shows an intention not to give or to take away rights of commerce, but simply to remove impediments, by dispensing with certain restrictions of the law of 1793.

The provisions concerning the coasting trade, have effect this state, as in all other states of the union ; and considered as regulations confining the navigation employed in the coasting trade, to citizens of the united states, and subjecting¡ that navigation to restrictions for the security of the revenue, there is no conflict between them and the grant to Livingston and Fulton. Steam vessels are as fully subject to these provisions, as vessels of any other description ; and all steam vessels in this state, whether navigated under the state grant ° ° or in opposition to it, are equally subject to their operation, The steam vessels navigated under the grant to Livingston and Fulton, have always conformed, as they were bound to form, to all these restrictions.

It is only when this law is considered as granting a right commerce, that any collision between it and the right granted by this state, can be found.

That terms so indefinite as the words, coasting trade, have been used for the purpose of establishing rights of *208Anerce, between different parts of the nation, is not probable. That this should have been done .without any known motive,. when a full freedom of intercourse, both by land and water, existed among all the states, is a supposition still more improbable. To expound these terms of this law, thus made, as a of rights, when its provisions have a direct application other objects, and when all those provisions have full effect, as restrictive regulations, would be a construction widely distant from the apparent intention of the legislature. To construe a license for the coasting trade, as an express grant of an absolute right to navigate from one place to another, in all cases, is to extract a right by inference, from regulations and restrictions which do not declare any such right, and is to give to a right so inferred, the same force and precision, which the most clear and affirmative terms expressly granting such a right, could bestow. Still more without reason, is such a right inferred from the license, when registered vessels have the rights of the coasting trade, and yet have no license.

*208f If, however, the law concerning the coasting trade, is conjsidered a regulation of commerce among the states, it can operate only upon that commerce, and can not invade the inters commerce of a state. Navigation is subject to the powers concerning commerce, only because it is an instrument of Commerce ; and where the congress can not regulate a commerce, it can not regulate the navigation which is merely instrumental in the prosecution of that commerce. So far then, , . , . , as this law may rest upon the power to regulate commerce among the states, it can not touch navigation employed in an internal commerce, which does not concern other states.

The grant to Livingston and Fulton, is no longer exclusive respect to other states. As every licensed vessel arriving 1 v . . from another state, may now enter our waters or may depart from them to another state, the grant has ceased to operate other states, and upon commerce among the states, Navigation between this state and others, by steam vessels having licenses, being entirely free, every interest which other states can have in this question, is satisfied.

, . . , t ti t What collision remains r The grant to Livingston and r ill-ton now operates only upon this state, and excludes all, excep*209ting those who hold the grant, from a particular employment within the state, when that employment does not affect the commerce of other states. If the grant, now reduced to this limit, affects the commerce or interests of other states, many other laws of the state, not yet impeached, are far more se- • r . nously m collision with commerce among the states. Sales by auction, are confined to a few persons appointed by the state; an important revenue is derived from this species commerce; and this regulation has an indirect effect, upon other states having commerce with or through this state. The tolls imposed on our canals and roads, are charges upon transportation, falling in a considerable degree, upon citizens of other states. The health laws of the state are a real and great impediment to commerce. Laws like these, which may ope- . v L rate remotely and minutely upon other states, can not be subverted by the power of the congress to regulate commerce among the states. A vessel moved by steam, may be rated or retarded in its course by the winds; and the employ-7 i. j meat of such a vessel in navigation between two points in the 1 same state, may remotely have some slight effect upon commerce with other states ; but influences so accidental and insignificant can neither deprive the vessel of its essential charac-v ter of a machine moved by steam, nor give to its employment the character of being engaged in commerce among the states,

But when this law is -considered as emanating from the~tax-mg power or the congress, the distinction between commerce among the states and the internal commerce of a state, . , ’ to perplex the inquiry. To a great extent, this law clearly re- ,, r. , . 1 , . „ . J sults irom the taxing power; and if the security of the revenue, is the main object of the act, all its particular provisions may he justly considered, as resulting from the same source, and as auxiliary to that great object. Thus understood, this act regulates navigation in some particulars, in order to se- “ . „ , 1 ! cure the revenue; it regulates that navigation, whether it is employed in the internal commerce of a state, or in commerce among the states ; and it regulates commerce in these particnlars, only in the manner in which, laws for the collection revenue from commerce, operate upon commerce, the subject taxed.

*210If this law can be considered in any respect, án exercise of power of the congress to regulate commerce among the ^ ° , , . . . , , states, it certainly must be understood as regulating the mterrial commérce of a state, in no other manner, than to subject vesseis employed in it, to restrictions, in pursuance of the ¡power to lay and collect taxes. These restrictions are not grants of right; and they are not regulations of commerce, in any sense excepting that, in which all laws for the collec- ■ tion of taxes charged upon commerce, may be termed commer.cial regulations. They are regulations of commerce, only as regulations for the due collection of taxes on agriculture ór manufactures, would be regulations of agriculture or manufactures. A law proceeding from the taxing power of the union, may operate upon vessels employed in commerce merely internal, as it may operate upon every thing within the scope of thatpower. But the taxing power, clear and absolute as it is, has its due course and effect, without annulling state laws. Every exposition of the constitution, from the days of the conven tiento this time, has truly taught, that the taxes of the union and1laws for their collection, do not extinguish state laws, hut operate, concurrently with them.

'"when this law is thus understood, it usurps no power of a state over its internal commerce, and it operates to subject all employed in a coasting trade wholly within a state, certE™ restrictions. These - restrictions, and the power of the state over its internal affairs, are perfectly compatible with 1 each other. The restrictions of this law, and a law of the ■ , state, may both operate upon vessels employed m a coasting trade confined to the state ; and neither law excludes or inter-with the operation of the other.

The provisions concerning the coasting trade between ports ^ie same state, are then, restrictive regulations ; and not grants of rights. The vessels employed in such voyages, are subject to the legislation of the state ; and the grant made to Livingston and Fulton, does not dispense with or defeat any restriction imposed on the coasting trade carried on between ports in this state.

Navigation between this state and any other, by steam vesseis licensed for the coasting trade, having been adjudged a *211light ; and navigation by steam vessel's mérely from oné place to another within this state, being still subject to the state grant; both these rights must have effect, so far as they are compatible with each other. Whew these rights really interfere, the right granted by the state must yield, and the right to navi- ■, . . _ _ gate between any port in the state and another state, must •! pi avail,

*211A steam vessel having a license, and entering this state from another, may proceed to any port in this state ; and such á vessel may depart from any port in this state, and proceed to another state. In either case, the vessel may touch at any intermediate place within the state. These rights are either expressly adjudged by the supreme court, or follow as. direct consequences from the principles of its decision. x

The navigation which remains subject to the state grant, that which takes place between any two points in this state, where the voyage is not a continuation of a passage to from another state. Such a voyage is equally subject to right granted by the state, whether it is between two places in ■, ... - - . . 1 the same revenue district, or between places in different nue districts within the state: This right is not affected the limits of revenue districts, or the obligations of masters of vessels in respect to manifests, oaths, reports and permits, in different cases. All those regulations of the coasting , ... have their due effect; but they do not vary the right to navigate from place to place. This question has no concern with ports of entry or ports of delivery : it having no J ° with foreign commerce, or with the entry or delivery of foreign . . . - , - . . merchandise upon its arrival in the united states. x

Thus, the points at which a voyage commences and termir nates, seem to me to determine, whether the voyage is protected by the license, or is subject to the state grant: and I do not' perceive, that these rights can he reconciled in practice, bV. J any other discrimination. A steam vessel having a license, and proceeding from a port in this state, may indeed, by touching at a port in an adjoining state, continue the voyasre to any i . J ° . . , “ .xT other port in this state ; and it is urged, that such a navigav • tion between two ports in the state, would be an evasion of state ‘ grant. But the intention with which a vessel may *212navigated to another state, can not, I think, repel or destroy the right, which tlie same vessel now has, to proceed from , ’ ' r another state to any port in this state. The right to navigate to or from another state, js now, an established and absolute notwithstanding the state grant; and this absolute right „ . f may, 1 conceive, be exercised, for the purpose of continuing a • voyage made from or to another state, to any other port in f f . • XmSSXaXe-

The.particular, case now before the court, is a voyage made' by the Olive Branch from the city of New York to the city of v Albany. On the part of the defendant, it is shown, that two boxes of merchandise intended to be transported to the cities of Jersey and Albany, were taken on board of the Olive Branch tbe city of New York ; that the vessel having also passenSers> proceeded first from the city of New York to the city of Jersey on the western shore of the Hudson; that some passengers were there landed, the vessel being then fastened to a wharf at that place ; and that the vessel proceeded thence, to Albany. The whole Hudson being in this state, it is insisted v by tlie complainants, that the Olive Branch, while at the city of Jersey, was still within this state, and that the. communication which took place at the city of Jersey, was not a voyage t0 or b'om the state of New Jersey. The Olive Branch wás‘ xn New Jersey, but approached the line of the two states, as nearly as such a vessel could approach; and did so, for the purpose of an intercourse with New Jersey, which actually took place. As it was impossible that this vessel should there pass navigation, from this state into New Jersey, and as an actua^ intercourse with that state took place, in the only manner ja which intercourse between" the two states by navigation, is , , . there practicable ; this seems to he a case of navigation from state to state, according to the sense and spirit of that decision, which has determined that a license for the coasting trade, confers a right to navigate from one state to another.

Upon these facts, an injunction is denied.