Passenger Cases

Passenger Cases
George Smith v. William Turner; James Norris v. Boston
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Supreme Court of the United States
Full case name George Smith, Plaintiff in Error v. William Turner, Health-Commissioner of the Port of New York; James Norris, Plaintiff in Error v. The City of Boston
Court membership

Smith v. Turner; Norris v. Boston, 48 U.S. 283 (1849),[1] were two similar cases, argued together before the United States Supreme Court, in which it was adjudged (5:4) that States did not have the right to impose a tax determined by the number of passengers of a designated category on board a ship and/or disembarking into the State.

The Court did not produce a majority opinion. Eight Justices authored separate opinions, and the respective stances on various issues did not always align with other Justices in their concurring or dissenting bloc. The issues addressed in various opinions included the following: Whether the Commerce Clause exclusively commits the power to regulate foreign commerce, interstate commerce and commerce with the Indian tribes to the federal government, and thus makes State regulation concerning foreign commerce an unconstitutional violation of the Commerce Clause, or whether the States were free to regulate in this area until such regulation conflicted with a valid federal regulation or involved an area which could only be regulated on a uniform basis; Whether regulation of migration of free individuals (as distinct from slaves) was included in the meaning of "commerce" covered by the Commerce Clause; Whether States had an absolute right to determine who could enter its geographical domain which could not be compromised, even by ratification of a foreign treaty, by the federal government, except with respect to federal officials, employees and agents, and foreign diplomats; Whether the federal government had any constitutional authority to regulate immigration from foreign nations (as distinct from its acknowledged power to determine which immigrants could be naturalized); Whether these laws violated the requirement of the introductory clause of Section 8 of Article I of the United States Constitution mandating that any imposts be "uniform throughout the United States; Whether Section 9 of Article I of the United States Constitution making 1808 a watershed date regarding Congressional power over "Such Persons as any of the States now existing should think proper to admit" referred only to the slave trade or also to immigration of free persons; Whether the nature of the New York and Massachusetts laws at bar in this case imposed a tax on the passengers or on the ships, and the implications of this distinction with respect to the nature of the taxation power of the States; and for those Justices concurring in the judgment of the Court; and the status and meaning of City of New York vs. Miln.[2]

The Passengers Case is of historical interest. It portrays a diversity of views on several constitutional questions, especially whether the Commerce Clause prohibits any State regulation of interstate and foreign commerce in the absence of federal law or treaty. A bitter personal attack on Chief Justice Taney by Justice Wayne also provides a glimpse of the personal dynamics of this fractious court. However, the failure of the court in this instance to produce a majority opinion significantly diminishes the value of the Passengers Case as formal legal precedent.



Facts of the case

In each of these cases a State imposed a tax to be collected from the master of a ship entering a harbor of that State. In each case the captain of a British ship challenged the constitutionality of the State law. Other facts varied between the two cases.

Smith vs. Turner

The State of New York imposed a tax on the passenger and crew of each ship entering the Port of New York at the following rates:

1) If the vessel traveled from the State of Connecticut, New Jersey or Rhode Island, the tax would be 25 cents for each person on board on the first occasion of each month such ship entered the Port of New York.

2) If the vessel traveled from another State of the Union, the tax would be 25 cents for each person on board with respect to each voyage including an entry into the Port of New York.

3) If the vessel traveled from a foreign port, the tax would be

   A) $1.50 for the master of the ship;
   B) $1.50 for each passenger of cabin class;
   C) $1.00 for each other crew member;
   D) $1.00 for each passenger of steerage class.

The revenues collected would be first directed to cover expenses of a marine hospital to care for those who arrived in a sickened state at the Port of New York. Excess revenues not needed for the maintenance of the marine hospital were redirected to the Society for the Reformation of Juvenile Delinquents in the City of New York, a charitable organization caring for and confining delinquent boys.

Smith was the master of Henry Bliss, a British ship. The Henry Bliss sailed from Liverpool, England, and entered the Port of New York in June 1841. Steerage-class passengers, 295 in number, disembarked in New York City. Smith refused to pay the portion of the New York State tax that was measured by these steerage-class passengers. Turner, the Health Commissioner of the Port of New York, sued Smith for $295 in taxes due under New York State law.

Norris vs. City of Boston

The Commonwealth of Massachusetts had a law which required an appropriate official to board each ship which had alien passengers on board and which had entered a port of that State. This official was to examine each alien passenger and determine which of them, if any, were a lunatic, an idiot, maimed, aged, an infirm person, an incompetent, a pauper or who had been a pauper. Such a passenger would be permitted to disembark only upon the posting of a bond for $1,000.00. Other alien passengers would be permitted to disembark upon the payment of a tax by the master, owner, consignee, or agent of such vessel amounting to the sum of $2.00 for each such passenger so disembarking.

The revenue collected would be directed to a fund to pay for the support of aliens who had become paupers in Massachusetts.

Norris was the master of the Union Jack, a schooner from St. John, of the Province of New Brunswick, then part of the British Empire. The Union Jack sailed from St. John and arrived in the Boston harbor on June 26, 1837. Norris was compelled by Bailey, an official of the City of Boston, to pay $38.00 before the 19 alien passengers, none of whom were in such a state or had such a history requiring the posting of a bond, were permitted to disembark. Norris sued the City of Boston to recover the $38.00 as having been improperly compelled.

Prior history

Decision of the Court

In each case the United States Supreme Court held, by a closely divided 5:4 majority, a part, but not the whole, of the respective State statute to be unconstitutional. A federal constitutional principle known as "standing" precludes the giving of an advisory opinion, i.e., a pronouncement of a decision concerning a matter which goes beyond the facts and record of the particular case. Thus, parts of the respective statutes not implicated by the specific facts of the case are not supposed to be ruled upon until a case involving a contest over such matters is actually presented to the court.

In Smith vs. Turner that portion of the New York statute concerning the collection of a tax measured by the number of steerage-class passengers from ships arriving from a foreign port was declared unconstitutional.

In Norris vs. City of Boston that portion of the Massachusetts law imposing a tax measured by the number of alien passengers allowed to disembark without bond was struck down as unconstitutional.

Concurring opinions

Justices McLean, Wayne, Catron, McKinley and Grier all concurred with the judgment of the United States Supreme Court in both cases. All five of the concurring Justices wrote a concurring opinion. The opinions of McLean and Wayne addressed the various issues which each considered to be implicated in both cases. Catron's opinion addressed only the Smith (New York) case; Grier's opinion addressed only the Norris (Massachusetts) case. Catron and Grier unequivocally joined each other's respective opinions. Wayne also endorsed Catron's and Grier's opinions. McKinley's opinion was limited to a discussion of the First Clause of Section Nine of Article I of the United States Constitution. (McKinley's opinion on this topic was also endorsed by Wayne.) McKinley may be deemed to be joining Grier's opinion (concerning the Norris case) as he stated that such opinion had expressed their "joint views in the cause coming up from Massachusetts" and that the writing of such opinion by Grier "has been done to [McKinley's] entire satisfaction."[3] As to the various issues involved in the Smith case, McKinley's views require more labor to decipher. McKinley remarked that he had "examined the opinions of ... McLean and ... Catron, and concur with the whole reasoning upon the main question."[3] What McKinley views as that "main question" is not explicated but probably refers to the apparently harmonious views of McLean and Catron concerning the nature of the Commerce Clause and its implications with respect to the reserved taxation and police powers of the States. The sequence in which these concurring opinions appear in the official reports follows the seniority of the respective concurring Justices who authored each opinion.

McLean Opinion

Justice McLean, the most senior member of the Court at the time, began his opinion by weighing in on the debate concerning the nature of the Commerce Clause. McLean asserted the Commerce Clause "is exclusively vested in Congress."[4] Under this view, if the federal government does not regulate a particular area of foreign or interstate commerce, such omission is not an invitation to the States to provide interim regulation, but rather is an expression of federal policy that such area should remain unregulated. McLean derives this interpretation of the Commerce Clause from a fundamental rejection of the concept of concurrent power. To McLean only one authority can exercise any given power, and the judicial task is to determine whether a particular subject falls within a power delegated to the federal government or within a power reserved to the States. McLean denies that a power may be exercised by the States unless and until the federal government chooses to exercise the same power, at which point the Sate regulation is trumped by the federal action. Although McLean recognizes that both Congress and the States may impose a tax on the same object, he insists these respective taxations result from the exercise of distinct powers, and do not represent any concurrent exercise of the same power. It is unclear what role the Supremacy Clause has in McLean's constitutional theory, since he seems to view each level of government as supreme within its own legitimate and distinct sphere of operations.

One of the key debates in the Passenger Cases concerned the question whether the transport of free persons, as distinct from goods and slaves, is to be included or excluded from the concept of "commerce" for purposes of the Commerce Clause. McLean construed the Commerce Clause to include the transport of free persons within its scope. In support of this conclusion, McLean cites the following passage from the opinion of the United States Supreme Court in Gibbons vs. Ogden: "the power to regulate commerce applies equally to the regulation of vessels employed in transporting men who pass from place to place voluntarily, and to those who pass involuntarily."[5]

McLean wrote in his opinion, "A state cannot regulate foreign commerce, but it may do many things which more or less affect it."[6] Thus, to McLean the next judicial task was to discern whether the New York tax is a regulation of foreign and interstate commerce or merely an exercise of legitimate State authority having an incidental effect on foreign and interstate commerce.

McLean did not consider attempts on the part of a State to defend itself from the introduction of harm to be a regulation of commerce. Thus, McLean views exclusion of infectious people from the State as a quarantine measure that is part of the State's reserved right to protect the health of its citizens and in no sense a regulation of foreign or interstate commerce. McLean further acknowledges a State may charge a fee reflecting the actual cost of the inspection for disease. McLean also acknowledges a right of States to prevent the entry of paupers to prevent the imposition of an economic burden. However, McLean did not recognize an unqualified right of the States to screen new entrants: "Except to guard its citizens against diseases and paupers, the municipal power of a state cannot prohibit the introduction of foreigners brought to this country under the authority of Congress."[7]

McLean rejected the characterization of the New York statute as a health measure. Although the revenues were applied in the first instance to a hospital, surplus revenues were diverted to a charitable society in New York City caring for delinquent boys. To McLean, a law that demanded payment beyond a fee for actual cost of inspection was a revenue measure, with no principled limitation that could be placed on the State as to the use of that revenue. McLean insisted the law imposed a tax on passengers and crew, and that if a tax of $1.00 per passenger could be extracted by the State of New York, a higher tax could also be imposed, including in an amount that would completely stifle the commercial activity of transporting passengers into the Port of New York. McLean concluded that the New York statute at bar was a regulation of commerce and thus an intrinsic violation of the Commerce Clause.

McLean also considered the New York Law a violation of the clause of Section 8 of Article I of the United States Constitution mandating that all duties, imposts and excises shall be uniform throughout the United States. In McLean's view this clause was enforceable against the States, as well as Congress. He considered a tax on passengers entering the United States to be an "impost," and a State tax on such passengers to have the effect of making such imposts non-uniform.

McLean went beyond the facts of the case to comment (as dictum[8]) that the tax when applied to the crew and passengers of coastal vessels traveling from other states violated the Sixth Clause of Section 9 of Article I prohibiting the imposition of duties on vessels traveling from one State to another.

McLean commented that under his view of the Commerce Clause the Massachusetts tax on immigrant passengers was also unconstitutional. McLean did not refer to his views regarding uniformity of imposts in his short discussion of the Norris case.

McLean did not join the vituperative debate concerning the manner in which the majority opinion in City of New York vs. Miln[9] was adopted. But he did reconcile his assent to the majority opinion in the Miln decision with his opinion in the Passenger Cases by noting that the Miln case did not involve any question concerning the validity of a tax, but only the validity of a reporting requirement.

Wayne Opinion

Justice Wayne's concurrence with the judgment, although referencing several several particular provisions of the United States Constitution, seems to be derived from a holistic understanding of the general impact of all of these provisions on the subject of commerce, as well as the nature of commerce as it exists even in the absence of formal documents such as the United States Constitution or the preceding Articles of Confederation. His analysis is formed from a consideration of many provisions of Article I of the United States Constitution, including the proviso of the First Clause of Section 8 regarding the uniformity of "Duties, Imposts and Excises," the passages of the Third Clause of Section 8 authorizing Congress to "regulate Commerce with foreign Nations, and among the several States" (the Commerce Clause), the passage of the Fourth Clause of Section 8 authorizing Congress to "establish an uniform Rule of Naturalization," and the passage of the clause[10] prohibiting any "Preference" with respect to any "Regulation of Commerce or Revenue to the Ports of one State over those of another," the provision of the First Clause of Section 10 prohibiting the States from entering into any treaty, the provisions of the Second Clause of Section 10 prohibiting the States from laying, without the consent of Congress, any "imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws," and the provisions of the Third Clause of Section 10 prohibiting the States, again without the consent of Congress, from laying any duty of tonnage, or entering into any "Agreement or Compact with another State."

To Wayne, it is necessary to examine the nature of commerce if one is to understand the meaning of the Commerce Clause, which clause authorizes Congress to "regulate Commerce with foreign Nations, and among the several States ...." Wayne noted that even without explication in a formal document such as a constitution, nations, at least in Europe, had recognized traditions of regulating their commerce in ways that varied between peace and wartime conditions. Under the European tradition "'[a] nation is ... fully authorized to prohibit the entry or exportation of certain merchandise, to institute customs and to augment them at pleasure, to prescribe the manner in which the commerce with its dominions shall be carried on, to point out the places where it shall be carried on, or to exempt from it certain parts of its dominions, to exercise freely its sovereign power over the foreigners living in its territories, [and] to make whatever distinctions between the nations with whom it trades it may find conducive to its interests.'"[11] According to Wayne, the very nature of commerce, as experienced in the European tradition and brought forth into the Commerce Clause, necessarily was a matter for the regulation of the nation as a whole: "Keeping, then, in mind what commerce is, and how far a nation may legally limit her own commercial transactions with another state,[12] we cannot be at a loss to determine, from the subject matter of the clause[13] in the Constitution, that the meaning of the terms used in it is to exclude the states[14] from regulating commerce in any way, except their own internal trade, and to confide its legislative regulation completely and entirely to Congress."[15] Wayne does not recapitulate the various ways in which Congress, by treaty and statute, actually regulates that foreign commerce which concerns immigrants and other alien passengers from abroad, particularly from Britain, preferring to incorporate by reference the detailed treatment of these measures by Justice Catron.

Notwithstanding the firmness of his opinion regarding the right of Congress, to the complete exclusion of State prerogative, to regulate foreign and interstate commerce, and even his view that the exclusivity principle had been authoritatively established by prior precedent of the United States Supreme Court, Wayne criticizes a parallel discussion of Justice McLean and announces that he and the other Justices concurring in the judgment "do not think it necessary in these cases to reaffirm, ... what this Court has long since decided, that the constitutional power to regulate 'commerce with foreign nations, and among the several states and with the Indian tribes,' is exclusively vested in Congress, and that no part of it can be exercised by a state."[16] The reasoning of Wayne is that even those who take the position that the States have the right to regulate foreign and interstate commerce in the absence of federal regulation readily admit that when the federal government actively regulates some aspect of foreign or interstate commerce, the States are prohibited under the Supremacy Clause[17] from enacting or enforcing any law inconsistent with the federal law. Wayne deemed that the federal government had engaged in regulating foreign commerce regarding passengers arriving from Great Britain when it entered into a series of treaties with Britain. Wayne declared that the New York and Massachusetts statutes at bar "conflict with treaty stipulations existing between the United States and Great Britain, permitting the inhabitants of the two countries 'freely and securely to come, with their ships and cargoes, to all places, ports, and rivers in the territories of each country to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of said territories, respectively;...'"[18][19]

To Wayne, taxes represent a cost which may be imposed on some item, person, activity or status which is already within or relates to that or who is already within the jurisdiction of the taxing authority. Duties and imposts are levied upon items and/or persons coming into the jurisdiction of the levying authority. Wayne also observes a distinction between commerce, which concerns an exchange or transportation of persons, goods, documents, or information, on the one hand, and police powers, concerning the regulation of the conduct of persons and the condition of persons/or items within the jurisdiction, on the other hand. Wayne recognizes States have very broad powers of taxation, but insists that some of that power of taxation was yielded with the adoption of the Constitution. The general principle adopted by Wayne in this regard is that if a power is delegated to Congress or to the national government, so much of the power of taxation which might interfere with the prerogatives of Congress and the national government are constrained in service of the federal system. Specifically, the exclusive federal control over immigration and naturalization precludes any State taxation that would interfere with federal policy in these areas.

Wayne (in harmony with all other Justices) recognize States as the primary repository of "police powers." (The federal government can exercise "police powers" only in territory that is federal - District of Columbia, territories, and federal enclaves in the States, such as military bases and federal buildings.) "Police power" encompasses the various measures taken to assure the safety and well-being of people at the local level. Thus, to Wayne the police power of a State to protect the health of its residents includes the right to exclude from its territory diseased people. A curious example of police power which all of the Justices involved in the Passenger Cases recognized was the right of slave States to exclude free citizens from Sub-Saharan Africa out of fear that they might help organize slave rebellions. However, the police power that was most critical, especially to part of the Massachusetts statute, was the right of a State to protect its economy and social fabric from an onslaught of paupers. The judgment in Norris technically did not strike down the portion of the statute concerning paupers. However, Wayne insisted that analysis of the various views of the five Justices concurring in the judgment establishes the willingness of a majority of the United States Supreme Court to strike down State taxation of immigrant paupers, or the shipping companies which bring them to shore. To Wayne the goal of rebuffing paupers was legitimate, but utilization of taxation was an unconstitutional means. Wayne counseled States to examine immigrants and expel those found to be diseased, paupers, fugitives from criminal justice, or otherwise unworthy of admission for other reasons related to the welfare of the citizens and residents of the State. Wayne even commented in dictum that if Congress ever were to exercise its power of regulating immigration to compel States to accept such persons, that the United States Supreme Court would readily strike down such a federal statute as unconstitutional.

In Wayne's view the clause of Section 9 of Article I of the United States Constitution prohibiting any "Preference" with respect to "Regulation of Commerce or Revenue to the Ports of one State over those of another" is not limited to federal action, but also precludes any action by the States which would result in such a preference. Wayne deems a tax of the nature imposed by these New York and Massachusetts statutes to create a "Preference" between ports, in violation of this constitutional clause. Impliedly, Wayne construes the No Preference Clause to even prohibit a State from creating a situation that would disadvantage the usage of its own port with the consequence of creating a preference on the part of shippers in favor of the ports of other States.

Wayne utilizes a parallel logic in construing the First Clause of Section 8 of Article I of the United States Constitution. This Clause qualifies the authority of Congress to "lay and collect Taxes, Duties, Imposts and Excises" with a command that "all Duties, Imposts and Excises shall be uniform throughout the United States." Again, although Article I concerns Congress, and Section 9 concerns an authority expressly granted to Congress, Wayne construes the proviso requiring uniformity as not only placing a limitation on the exercise of Congressional power, but as also imposing on the States the duty not to compromise the uniformity of "Duties, Imposts and Excises" collected "throughout the United States."

In addition to Wayne's discussion of the constitutional issues, he expounds at length on the alleged history and imputed status of City of New York vs. Miln.[20] According to Wayne, the opinion authored by Justice Barbour which purports to be the official opinion of the United States Supreme Court in that case "had not at any time the concurrence of a majority of its members."[21] He also bitterly accuses Chief Justice Taney of knowingly disregarding that supposed fact with the consequence of creating a false precedent in the official reports.

Catron Opinion

As noted above, Justice Catron's opinion ostensibly addressed only the New York case (Smith vs. Turner). However, its discussion of Congressional statutes and treaties is applicable to both the New York and Massachusetts (Norris vs. City of Boston) cases.

Catron discusses federal law regarding naturalization of immigrants as American citizens. The Declaration of Independence had included in the offenses of the King that he had "endeavored to prevent the population of the colonies by obstructing the laws for the naturalization of foreigners, and refusing to pass others to encourage their migration hither."[22] The United States Constitution commits to Congress the power "to establish a uniform rule of naturalization."[23] Catron discusses Congressional implementation of its jurisdiction over naturalization. On March 26, 1790 Congress enacted legislation permitting any immigrant alien who was a "free white person" to become a naturalized United States citizen after a mere 2 years of residence in the United States.[24] Congress later (April 14, 1802)[25] amended the naturalization statute to require 5 years of residence.[26] Catron waxed regarding the benefits which promoting immigration had conferred on the United States:

Under these laws have been admitted such numbers, that they and their descendants constitute a great part of our population. Every department of science, of labor, occupation, and pursuit, is filled up, more or less, by naturalized citizens and their numerous offspring. From the first day of our separate existence to this time has the policy of drawing hither aliens, to the end of becoming citizens, been a favorite policy of the United States; it has been cherished by Congress with rare steadiness and vigor. By this policy our extensive and fertile country has been, to a considerable extent, filled up by a respectable population, both physically and mentally, one that is easily governed and usually of approved patriotism."[27]

Catron had no doubt that the 295 immigrants aboard the Henry Bliss whom New York State proposed to tax were responding to this federal policy:

We have invited to come to our country from other lands all free white persons, of every grade and of every religious belief, and when here to enjoy our protection, and at the end of five years to enjoy all our rights, except that of becoming President of the United States. Pursuant to this notorious and long established policy, the two hundred and ninety-five passengers in the Henry Bliss arrived at the port of New York."[27]

Catron observed that the States may not tax goods or possessions of immigrant passengers, citing both a federal statute[28] and the United States Supreme Court opinion of Brown vs Maryland.[29] He then poses the question as to whether the result should be any different with respect to taxation based on the passengers themselves.

Dissenting opinions

Effects of the decision

Critical response

Subsequent history


  1. ^ {{{2}}} U.S. {{{3}}} Full text of the opinion courtesy of
  2. ^ 34 U.S. (11 Pet.) 85 (1835).
  3. ^ a b 48 U.S. at 452.
  4. ^ 48 U.S. at 400.
  5. ^ 48 U.S. at 401, quoting from 22 U.S. at 216-217.
  6. ^ 48 U.S. at 402.
  7. ^ 48 U.S. at 406.
  8. ^ "Dictum" in law refers to judicial comments that are superfluous to that which was necessary to decide the case at bar. The antonym is "desideratum," referring to that reasoning which was essential or necessary to produce the judgment. Strictly speaking, dictum, even when it appears in a majority decision of the United States Supreme Court, is not binding precedent on lower courts.
  9. ^ 11 U.S. 1
  10. ^ Wayne labeled this clause the "fifth" clause of Section 9, 48 U.S. at 420, even though many scholars treat this particular clause as the sixth clause of Section 9.
  11. ^ 48 U.S. at 416, quoting from "Summary of the Laws of Nations" by Martens.
  12. ^ The term "state" refers here not to one of the States of the United States, but to a foreign state or nations.
  13. ^ Clause 3 of Section 8 of Article I
  14. ^ The term "states" here refers to the various States of the United States, not to foreign states or nations.
  15. ^ 48 U.S. at 417.
  16. ^ 48 U.S. at 411.
  17. ^ The second clause of Article VI of the U.S. Constitution.
  18. ^ 48 U.S. at 413.
  19. ^ The first commercial treaty between the United States and Great Britain was adopted in 1794. That particular treaty was abrogated by the War of 1812. However, similar treaty provisions were renewed in a subsequent treaty between the United States and Britain adopted in 1815, the second article of which contains the language quoted by Justice Wayne.
  20. ^ 36 U.S. 102.
  21. ^ 48 U.S. at 429.
  22. ^ This language is the paraphrasing of Justice Catron, 48 U.S. at 440, not a quote from the Declaration of Independence.
  23. ^ First Provision of the Fourth Clause of Section 8 of Article I.
  24. ^ 1 Stat. at L. 103, "An act to establish an uniform rule of naturalization."
  25. ^ Justice Catron misstates the date as April 26, 1802. 48 U.S. at 440.
  26. ^ 2 Stat. at L. 153, "An act to establish a uniform rule of naturalization, and to repeal the acts heretofore passed on that subject."
  27. ^ a b 48 U.S. at 440.
  28. ^ Catron refers to Section 46 of a federal law which he calls the "General Collection Act of 2 March 1799." 48 U.S. at 441. The official title of that act is "An Act to regulate the collection of imports and tonnage." 1 Stat. at Large 627. The portion of Section 46 to which Catron refers and the excerpt he quotes is found at 1 Stat. at Large 661.
  29. ^ 25 U.S. 419.

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