112 US 580 Edye v. Robertson

112 U.S. 580

5 S.Ct. 247

28 L.Ed. 798

EDYE and another
ROBERTSON, Collector, etc.1 [In Error to the Circuit

Court of the United States for the Eastern

District of New York.]



ROBERTSON, Collector, etc.2




[In Error to the Circuit Court of the United States for the Southern District of New York.]

December 8, 1884.

[Syllabus and statement of facts from pages 580-582 intentionally omitted]

Geo. De Forest Lord, for Cunard Steam-ship Co.

[Argument of Counsel from pages 582-584 intentionally omitted]

Philip J. Joachimsen and Edwards Pierrepont, for Edye and others.

[Argument of Counsel from pages 584-586 intentionally omitted]

Sol. Gen. Phillips, for Robertson, Collector, etc.



These cases all involve the same questions of law, and have been argued before this court together. The case at the head of the list presents all the facts in the form of an agreed statement signed by counsel, and it therefore brings the questions before us very fully. The other two were decided by the circuit court on demurrer to the declaration. They will be disposed of here in one opinion, which will have reference to the case as made by the record in Edye et al. v. Robertson. The suit is brought to recover from Robertson the sum of money received by him, as collector of the port of New York, from plaintiffs, on account of their landing in that port passengers from foreign ports, not citizens of the United States, at the rate of 50 cents for each of such passengers, under the act of congress of August 3, 1882, entitled 'An act to regulate immigration.' The petition of plaintiffs and the agreed facts, which are also made the finding of the court to which the case was submitted without a jury, are the same with regard to each of many arrivals of vessels of the plaintiffs, except as to the name of the vessel and the number and age of the passengers. The statement as to the arrival first named, which is here given, will be sufficient for them all, for the purposes of this opinion.


The following are admitted to be the facts in this action: '(1) That the plaintiffs are partners in trade in the city of New York under the firm name of Funch, Edye & Co., and carry on the business of transporting passengers and freight upon the high seas between Holland and the United States of America as consignees and agents. That on the second day of October, 1882, there arrived, consigned to the plaintiffs, the Dutch ship Leerdam, owned by certain citizens or subjects of the kingdom of Holland, and belonging to the nationality of Holland, at the port of New York. She had sailed from the foreign port of Rotterdam, in Holland, bound to New York, and carried 382 persons not citizens of the United States. That among said 382 persons 20 were severally under the age of one year and 59 were severally between the ages of one year and eight years. That upon the arrival of said steam-ship Leerdam within the collection district of New York, the master thereof gave, in pursuance to section 9 of the passenger act of 1882, and delivered to the custom-house officer, who first came on board the vessel and made demand therefor, a correct list, signed by the master, of all the passengers taken on board of said Leerdam at said Rotterdam, specifying separately the names of the cabin passengers, their age, sex, calling, and the country of which they are citizens, and also the name, age, sex, calling, and native country of each emigrant passenger or passengers other than cabin passengers, and their intended destination or location, and in all other respects complying with said ninth section, and a duplicate of the aforesaid list of passengers, verified by the oath of the master, was, with the manifest of the cargo, delivered by the master to the defendant as collector of customs of the port of New York on the entry of said vessel. That it appears from the said list of passengers and duplicate that the said 382 persons were each and every one subjects of Holland or other foreign powers in treaty of peace, amity, and commerce with the United States. That the said passenger manifest also states the total number of passengers, and shows that 20 of them were under one year of age, and 59 between the ages of one year and eight years. That said collector, before allowing complete entry of said vessel, as collector decided, on the twelfth day of October, 1882, that the plaintiffs must pay a duty of one hundred and ninety-one dollars for said passengers, being fifty cents for each of said 382 passengers. That by the regulations of the treasury department the non-payment of said 191 dollars would have permitted the defendant to refuse the complete entry of the vessel, or to refuse to give her a clearance from the port of New York to her home port, and such imposition would have created an apparent lien on said vessel for said sum of 191 dollars. On the defendants making such demand the plaintiffs paid the same and protested against the payment thereof. That a copy of the protest in regard to said Leerdam is annexed to the complaint, marked 'No. 1,' and is a correct copy of the protest. That on the same day the plaintiffs duly appealed to the secretary of treasury from such decision of the collector, and that the paper marked 'Appeal No. 2,' annexed to the complaint, is a copy of said appeal. On the eighteenth October, 1882, the secretary of the treasury sustained the action of the defendant, and this action is brought within ninety days after the rendering of such decision. That the payment set forth in the complaint herein was levied and collected by defendant, and the same was paid under and in pursuance of an act of congress entitled 'An act to regulate emigration,' approved August 3, 1882.' On the facts as thus agreed and as found by the circuit court, a judgment was rendered in favor of defendant, which we are called upon to review. There is no complaint by plaintiffs that the defendant violated this act in any respect but one, namely, that it did not authorize him to demand anything for the 20 children under one year old, and for the 59 who were between the ages of one year and eight years. The supposed exception of this class of passengers does not arise out of any language found in this act to regulate immigration, nor any policy on which it is founded, but it is based by counsel on a provision of an act approved one day earlier than this, entitled 'An act to regulate the carriage of passengers by sea.' This provision limits the number of passengers which the vessel may carry by the number of cubic feet of space in which they are to be carried, and it declares that, in making this calculation, children of the ages mentioned need not be counted. In reference to the space they will occupy this principle is reasonable. But, as regards the purpose of the immigration act to raise a fund for the sick, the poor, and the helpless immigrant, children are as likely to require its aid as adults, probably more so. They are certainly within the definition of the word 'passenger,' when otherwise within the purview of the act. This branch of the case requires no further consideration.


The other errors assigned, however numerous or in whatever language presented, all rest on the proposition that the act of congress requiring the collector to demand and receive from the master, owner, or consignee of each vessel arriving from a foreign port, 50 cents for every passenger whom he brings into a port of the United States who is not a citizen, is without warrant in the constitution and is void. The substance of the act is found in its first section, namely:




'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that there shall be levied, collected, and paid a duty of fifty cents for each and every passenger, not a citizen of the United States, who shall come by steam or sail vessel from a foreign port to any port within the United States. The said duty shall be paid to the collector of customs of the port to which such passenger shall come, or if there be no collector at such port, then to the collector of customs nearest thereto, by the master, owner, agent, or consignee of every such vessel, within twenty-four hours after the entry thereof into such port. The money thus collected shall be paid into the United States treasury, and shall constitute a fund to be called the immigrant fund, and shall be used, under the direction of the secretary of the treasury, to defray the expenses of regulating immigration under this act, and for the care of immigrants arriving in the United States, for the relief of such as are in distress, and for the general purposes and expenses of carrying this act into effect.'


The act further authorizes the secretary to use the aid of any state organization or officer for carrying into effect the beneficent objects of this law, by distributing the fund in accordance with the purpose for which it was raised, not exceeding in any port the sum received from it, under rules and regulations to be prescribed by him. It directs that such officers shall go on board vessels arriving from abroad, and if, on examination, they shall find any convict, lunatic, idiot, or any person unable to take care of himself or herself, without becoming a public charge, they shall report to the collector, and such person shall not be permitted to land. It is also enacted that convicts, except for political offenses, shall be returned to the nations to which they belong. And the secretary is directed to prepare rules for the protection of the immigrant who needs it, and for the return of those who are not permitted to land. This act of congress is similar, in its essential features, to many statutes enacted by states of the Union for the protection of their own citizens, and for the good of the immigrants who land at sea-ports within their borders. That the purpose of these statutes is humane, is highly beneficial to the poor and helpless immigrant, and is essential to the protection of the people in whose midst they are deposited by the steam-ships, is beyond dispute. That the power to pass such laws should exist in some legislative body in this country is equally clear. This court has decided distinctly and frequently, and always after a full hearing from able counsel, that it does not belong to the states. That decision did not rest in any case on the ground that the state and its people were not deeply interested in the existence and enforcement of such laws, and were not capable of enforcing them if they had the power to enact them, but on the ground that the constitution, in the division of powers which it declares between the states and the general government, has conferred this power on the latter to the exclusion of the former. We are now asked to decide that it does not exist in congress, which is to hold that it does not exist at all; that the framers of the constitution have so worded that remarkable instrument that the ships of all nations, including our own, can, without restraint or regulation, deposit here, if they find it to their interest to do so, the entire European population of criminals, paupers, and diseased persons, without making any provision to preserve them from sharvation, and its concomitant sufferings, even for the first few days after they have left the vessel. This court is not only asked to decide this, but is asked to overrule its decision, several times made with unanimity, that the power does reside in congress, is conferred upon that body by the express language of the constitution, and the attention of congress called to the duty which arises from that language to pass the very law which is here in question. That these statutes are regulations of commerce,—of commerce with foreign nations,—is conceded in the argument in this case, and that they constitute a regulation of that class which belongs exclusively to congress is held in all the cases in this court. It is upon these propositions that the court has decided in all these cases that the state laws are void. Let us examine those decisions for a moment.


In The Passenger Cases, so called, the report of which occupies the pages of 7 Howard from page 283 to 573, mostly with opinions of the judges, the order of the court is that 'it is the opinion of the court that the statute of New York, by which the health commissioner of the city of New York is declared entitled to demand and receive from the master of every vessel from a foreign port that shall arrive in the port of that city the sum of one dollar for each steerage passenger brought in such vessel, is repugnant to the constitution and laws of the United States, and therefore void.' An examination of the opinions of the judges shows that if the majority agreed upon any one reason for this order, it was because the law was a regulation of commerce, the power over which that constitution had placed exclusively in congress. The same examination will show that several judges denied this, because they held that this power belonged to the class which the states might exercise until it was assumed by congress. It is very clear that if any such act of congress had existed then as the one now before us, the decision of the court would have been nearer to unanimity.


In the case of Henderson v. Mayor of New York, 92 U. S. 259, the whole subject is reviewed, and, in the light of the division in this court in The Passenger Cases, it is considered, on principle, as if for the first time. In that case, after the statute of New York had been modified in such a manner as was supposed to remove the objections held good against it in The Passenger Cases, the question of its constitutional validity was again brought before this court, when it was held void by the unanimous judgment of all its members. And this was upon the distinct ground that it was a regulation of commerce solely within the power of congress. 'As already indicated,' says the court, 'the provision of the constitution of the United States, on which the principal reliance is placed, is that which gives to congress the right 'to regulate commerce with foreign nations." The court then, referring to the transportation of passengers from European ports to those of the United States, says: 'It has become a part of our commerce with foreign nations, of vast interest to this country as well as to the immigrants who come among us, to find a welcome and a home within our borders.' 'Is the regulation of this great system a regulation of commerce? Can it be doubted that a law which prescribes the terms on which vessels shall engage in it is a law regulating this branch of commerce?' The court adds: 'We are of opinion that this whole subject has been confided to congress by the constitution; that congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question which has long been matter of contest and complaint may be effectually and satisfactorily settled.' And for this reason the statute of New York was held void.


In the case of Commissioners of Immigration v. North German Lloyd, 92 U. S. 259, a similar statute of Louisiana was held void for the same reason. And in the case of Chy Lung v. Freeman, decided at the same term,—92 U. S. 275, the statute of California, on the same subject, was also held void, because, in the language of the head-note to the report, 'it invades the right of congress to regulate commerce with foreign nations.'


In the case of People v. Compagnie Generale Transatlantique, 107 U. S. 59, S. C. 2 SUP. CT. REP. 87, where the state of New York, having again modified her statute, it was again held void, the court said: 'It has been so repeatedly decided by this court that such a tax is a regulation of commerce with foreign nations, confided by the constitution to the exclusive control of congress,' (referring to the cases just cited,) 'that there is little to say beyond affirming the judgment of the circuit court, which was based on those decisions.'


It cannot be said that these cases do not govern the present, though there was not then before us any act of congress whose validity was in question, for the decisions rest upon the ground that the state statutes were void only because congress, and not the states, was authorized by the constitution to pass them, and for the reason that congress could enact such laws, and for that reason alone, were the acts of the state held void. It was, therefore, of the essence of the decision which held the state statutes invalid, that a similar statute by congress would be valid. We are not disposed to reconsider those cases, or to resort to other reasons for holding that they were well decided. Nor do we feel that further argument in support of them is needed. But counsel for plaintiffs, assuming that congress, in the enactment of this law, is exercising the taxing power conferred by the first clause of section 8, art. 1, Const., and can derive no aid in support of its action from any other grant of power in that instrument, argues that all the restraints and qualifications found there in regard to any form of taxation are limitations upon the exercise of the power in this case. The clause is in the following language: 'The congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and the general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.'


In this view it is objected that the tax is not levied to provide for the common defense and general welfare of the United States, and that it is not uniform throughout the United States. The uniformity here prescribed has reference to the various localities in which the tax is intended to operate. 'It shall be uniform throughout the United States.' Is the tax on tobacco void because in many of the state no tobacco is raised or manufactured? Is the tax on distilled spirits void because a few states pay three-fourths of the revenue arising from it? The tax is uniform when it operates with the same force and effect in every place where the subject of it is found. The tax in this case, which, as far as it can be called a tax, is an excise duty on the business of bringing passengers from foreign countries into this by ocean navigation, is uniform and operates precisely alike in every port of the United States where such passengers can be landed. It is said that the statute violates the rule of uniformity and the provision of the constitution that 'no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another,' because it does not apply to passengers arriving in this country by railroad or other inland mode of conveyance. But the law applies to all ports alike, and evidently gives no preference to one over another, but is uniform in its operation in all ports of the United States. It may be added that the evil to be remedied by this legislation has no existence on our inland borders, and immigration in that quarter needed no such regulation. Perfect uniformity and perfect equality of taxation, in all the aspects in which the human mind can view it, is a baseless dream, as this court has said more than once. State Railroad Tax Cases, 92 U. S. 612. Here there is substantial uniformity within the meaning and purpose of the constitution.


If it were necessary to prove that the imposition of this contribution on owners of ships is made for the general welfare of the United States, it would not be difficult to show that it is so, and particularly that it is among the means which congress may deem necessary and proper for that purpose, and beyond this we are not permitted to inquire. But the true answer to all these objections is that the power exercised in this instance is not the taxing power. The burden imposed on the ship-owner by this statute is the mere incident of the regulation of commerce—of that branch of foreign commerce which is involved in immigration. The title of the act, 'An act to regulate immigration,' is well chosen. It describes, as well as any short sentence can describe it, the real purpose and effect of the statute. Its provisions, from beginning to end, relate to the subject of immigration, and they are aptly designed to mitigate the evils inherent in the business of bringing foreigners to this country, as those evils affect both the immigrant and the people among whom he is suddenly brought and left to his own resources.


It is true, not much is said about protecting the ship-owner. But he is the man who reaps the profit from the transaction, who has the means to protect himself, and knows well how to do it, and whose obligations in the premises need the aid of the statute for their enforcement. The sum demanded of him is not, therefore, strictly speaking, a tax or duty within the meaning of the constitution. The money thus raised, though paid into the treasury, is appropriated in advance to the uses of the statute, and does not go to the general support of the government. It constitutes a fund raised from those who are engaged in the transportation of these passengers, and who make profit out of it, for the temporary care of the passengers whom they bring among us, and for the protection of the citizens among whom they are landed. It this is an expedient regulation of commerce by congress, and the end to be attained is one falling within that power, the act is not void because, within a loose and more extended sense than was used in the constitution, it is called a tax. In the case of Veazie Bank v. Fenno, 8 Wall. 549, the enormous tax of 8 per cent. per annum on the circulation of state banks, which was designed, and did have the effect, to drive all such circulation out of existence, was upheld because it was a means properly adopted by congress to protect the currency which it had created; namely, the legal-tender notes and the notes of the national banks. It was not subject, therefore, to the rules which would invalidate an ordinary tax pure and simple. So, also, in the case of Packet Co. v. Keokuk, 95 U. S. 80, the city of Keokuk having by ordinance imposed a wharfage fee or tax, for the use of a wharf owned by the city, the amount of which was regulated by the tonnage of the vessel, this was held not to be a tonnage tax within the meaning of the constitutional provision that 'no state shall, without the consent of congress, lay any duty of tonnage.' The reason of this is that, though it was a burden or tax in some sense, and measured by the tonnage of the vessel, it was but a charge for services rendered, or for conveniences furnished by the city, and was not a tonnage tax within the meaning of the constitution. This principle was reaffirmed in the case of Same Plaintiff v. City of St. Louis, 100 U. S. 423.


We are clearly of opinion that, in the exercise of its power to regulate immigration, and in the very act of exercising that power, it was competent for congress to impose this contribution on the ship-owner engaged in that business. Another objection to the validity of this act of congress is that it violates provisions contained in numerous treaties of our government with friendly nations. And several of the articles of these treaties are annexed to the careful brief of counsel. We are not satisfied that this act of congress violates any of these treaties, on any just construction of them. Though laws similar to this have long been enforced by the state of New York in the great metropolis of foreign trade, where four-fifths of these passengers have been landed, no complaint has been made by any foreign nation to ours of the violation of treaty obligations by the enforcement of those laws. But we do not place the defense of the act of congress against this objection upon that suggestion. We are of opinion that, so far as the provisions in that act may be found to be in conflict with any treaty with a foreign nation, they must prevail in all the judicial courts of this country. We had supposed that the question here raised was set at rest in this court by the decision in the case of The Cherokee Tobacco, 11 Wall. 616. It is true, as suggested by counsel, that three judges of the court did not sit in the case, and two others dissented. But six judges took part in the decision, and the two who dissented placed that dissent upon the ground that congress did not intend that the tax on tobacco should extend to the Cherokee tribe. They referred to the existence of the treaty which would be violated if the statute was so construed as persuasive against such a construction, but they nowhere intimated that, if the statute was correctly construed by the court, it was void because it conflicted with the treaty, which they would have done if they had held that view. On the point now in controversy it was therefore the opinion of all the judges who heard the case. See U. S. v. McBratney, 104 U. S. 621-623.


The precise question involved here, namely, a supposed conflict between an act of congress imposing a customs duty, and a treaty with Russia on that subject, in force when the act was passed, came before the circuit court for the district of Massachusetts in 1855. It received the consideration of that eminent jurist, Mr. Justice CURTIS, of this court, who in a very learned opinion exhausted the sources of argument on the subject, holding that if there were such conflict the act of congress must prevail in a judicial forum. Taylor v. Morton, 2 Curt. C. C. 454. And Mr. Justice FIELD, in a very recent case in the Ninth circuit, that of In re Ah Lung, on a writ of habeas corpus, has delivered an opinion sustaining the same doctrine in reference to a statute regulating the immigration of Chinamen into this country. 18 Fed. Rep. 28. In the Clinton Bridge Case, Woolw. 156, the writer of this opinion expressed the same views as did Judge WOODRUFF, on full consideration, in Ropes v. Clinch, 8 Blatchf. 304, and Judge WALLACE, in the same circuit, in Bartram v. Robertson, 15 Fed. Rep. 212.


It is very difficult to understand how any different doctrine can be sustained. A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties, which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens. The constitution of the United States places such provisions as these in the same category as other laws of congress by its declaration that 'this constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.' A treaty, then, is a law of the land as an act of congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute. But even in this aspect of the case there is nothing in this law which makes it irrepealable or unchangeable. The constitution gives it no superiority over an act of congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity. A treaty is made by the president and the senate. Statutes are made by the president, the senate, and the house of representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difference in this regard, it would seem to be in favor of an act in which all three of the bodies participate. And such is, in fact, the case in a declaration of war, which must be made by congress, and which, when made, usually suspends or destroys existing treaties between the nations thus at war. In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as congress may pass for its enforcement, modification, or repeal.


Other objections are made to this statute. Some of these relate, not to the power of congress to pass the act, but to the measure, of which congress, and not the courts, measure, f which congress, and not the courts, are the sole judges—such as its unequal operation on persons not paupers or criminals, and its effect in compelling the ultimate payment of the sum demanded for each passenger by that passenger himself. Also, that the money is to be drawn from the treasury without an appropriation by congress. The act itself makes the appropriation, and even if this be not warranted by the constitution, it does not make void the demand for contribution, which may yet be appropriated by congress, if that be necessary, by another statute. It is enough to say that, congress having the power to pass a law regulating immigration as a part of the commerce of this country with foreign nations, we see nothing in the statute by which it has here exercised that power forbidden by any other part of the constitution. The judgment of the circuit court in all the cases is affirmed.


S. C. 18 Fed. Rep. 135.


S. C. 18 Fed. Rep. 147.