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fession, or calling, and to provide for its collection; and said license shall not be construed to be a tax on property." The same act (section 21) provides that “all licenses imposed by the city, not paid on the thirty-first day of July, shall be seizable, after thirty days' publication in the official journal,” in cer. tain courts of record in the city; "and upon the prayer of the city, through its proper representatives, any court of competent jurisdiction shall enjoin the said person or persons so liable to pay a license tax, and who shall refuse or neglect to pay the same, from continuing to carry on such business or profession until he shall have paid the same, and all costs and charges for the recovery and enforcement of the claim therefor.” The council of the city of New Orleans passed an ordinance “to establish the rate of licenses for professions, callings, and other business for the year 1880,” which assessed and* directed to be collected the sums specially set forth; among others: "Sec. 39. Every member of a firm or company, every agency, person, or corporation, owning and running tow-boats to and from the Gulf of Mexico, five hundred dollars. Every member of a firm or company, every agent, person, or corporation, owning and running job-boats within the corporate limits, fifty dollars.
Joseph Cooper was the owner of two steam-propellers, each measuring over 100 tons, duly enrolled and licensed at the port of New Orleans, under the laws of the United States, to be employed in the coasting trade, and employed them as tow-boats in taking vessels from the sea up the river to New Orleans, and from that port to the sea. The city of New Orleans brought its action against him in the third district court for the parish of Orleans, to recover the license tax under the ordinance, and obtained a judgment in its : favor, which, on appeal, was affirmed by the supreme court of the state. * The defense relied on and overruled was that the ordinance imposing the license tax was a regulation of commerce among the states, and therefore contrary to article 1, § 8, par. 3, Const. U. S., and void. Whether the supreme court of Louisiana erred in overruling that defense is the single question presented for our consideration.
In the case of Sinnot v. Davenport, 22 How. 227, it was decided that a law of Alabama requiring owners of stearn-boats navigating the waters of the state, before such boat shall leave the port of Mobile, to file a statement in writing in the office of the probate judge of the county, setting forth the name of the vessel, the name, place of residence, and the interest of each owner in the vessel, under a penalty for non-compliance, as applied to a ves-a sel which had taken out a license and was duly enrolled under the act of congress for carrying on the coasting trade, and plied between New Orleans and the cities of Montgomery and Wetumpka, in Alabama, was in conflict with the act of congress, and was, therefore, unconstitutional and void. Mr. Justice NELSON, delivering the opinion of the court, (p. 243,) said: “The whole commercial marine of the country is placed by the constitution under the regulation of congress, and all laws passed by that body in the regulation of navigation and trade, whether foreign or coast wise, is, therefore, but the exercise of an undisputed power. When, therefore, an act of the legislature of a state prescribes a regulation of the subject repugnant to and inconsistent with the regulation of congress, the state law must give way, and this with. out regard to the source of power whence the state legislature derived its enactment." And, repeating what was said in Gibbons v. Ogden, 9 Wheat. 210-214, as to the force and effect of the act of congress providing for the enrollment and license of vessels engaged in the coasting trade, and of the license itself when issued, Mr. Justice NELSON said: “These are the guards and restraints, and the only guards and restraints, which congress has seen fit to annex to the privileges of ships and vessels engaged in the coasting trade, and upon a compliance with which, as we have seen, as full and complete authority is conferred by the license to carry on the trade as congress is
capable of conferring." The act of the legislature of Alabama in that case was declared void on the single and distinct ground that it imposed another and an additional condition to the privilege of carrying on this trade within her waters.
Immediately following that case, argued and decided at the same time, was that of Foster v. Davenport, 22 How. 244. It differed from the former in this respect only: that the vessel seized for non-compliance with the law of Alabama was engaged in lightering goods from and to vessels anchored in the lower bay of Mobile and the wharves of the city, and in towing vessels anchored there to and from the city, and, in some instances, towing the same beyond the outer bar of the bay and into the gulf to the distance of several miles, but was duly enrolled and licensed to carry on the coasting trade while engaged in this business. Mr. Justice Nelson, delivering the opinion of the court, said: “It is quite apparent, from the facts admitted in the case, that the steam-boat was employed in aid of vessels engaged in the foreign or coastwise trade and commerce of the United States, either in the delivery of their cargoes, or in towing the vessels themselves to the port of Mobile. The character of the navigation and business in which it was employed cannot be distinguished from that in wbich the vessels it towed or unloaded were engaged. The lightering or towing was but the prolongation of the voyage of the vessels assisted to their port of destination."
The present case would seem to fall directly within the rule of these decisions, unless the fact that the ordinance of the city of New Orleans is the exsrcise of the taxing power of the state can be supposed to make a material difference. But since the case of Brown v. Maryland, 12 Wheat. 419, it has been repeatedly decided by this court that when a law of a state imposes a tax, under such circumstances and with such effect as to constitute it a reg. ulation of commerce, either foreign or interstate, it is void on that account. Telegraph Co. v. Texas, 105 U. Š. 460, and cases there cited. In the State Freight Tax Cases, 15 Wall. 232-276, it was said that it could not make any difference that the legislative purpose was to raise money for the support of the state government, and not to regulate transportation; that it was not the purpose of the law, but its effect, which was to be considered. The fundamental proposit'.on on the subject was expressed by Mr. Justice MILLER, delivering the opinion of the court in Crandall v. Nevada, 6 Wall. 35-45, in this comprehensive language: "The question of the taxing power of the states, as its exercise has affected the functions of the federal government, has been repeatedly considered by this court; and the right of the states in this mode to impede or einbarrass the constitutional operations of that government, or the rights which its citizens hold under it, has been uniformly denied."
Otherwise, unrestrained by the authority of the federal constitution, the taxing power of the states extends to and embraces the persons, property, and pursuits of their people; although it is not always easy, in particular cases, to draw the line which separates the two jurisdictions; as may be seen by comparing the cases of State Freight T'ax, 15 Wall. 232, and of State Tax on Railway Gross Receipts, Id. 281, and as was said in Osborne v. Mobile, 16 Wall. 479. And it is undoubtedly true, as it has often been judicially declared, that vessels engaged in foreign or interstate commerce, and duly enrolled and licensed under the acts of congress, may be taxed by state authority as property; provided the tax be not a tonnage duty, is levied only at the port of registry, and is valued as other property in the state without un. favorable discrimination on account of its employment. Transportation Co. v. Wheeling, 99 U. S. 273; Morgan v. Parham, 16 Wall. 471; Hays v. Pacific Mail Steam-ship Co. 17 How. 596; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365; S. C. 2 SUP. Cr. REP. 257. But the license fee in the present case is not a tax upon the boats as property, according to any valuation.
The very law authorizing its imposition declares that it shall not be construed to be a tax on property.
It is said, however, to be a tax on an occupation, and for that reason not a regulation of commerce. If it were a tax upon the income derived from the business, it might be justified by the principle of the decision in the case of State Tax on Railway Gross Řeceipts, 15 Wall. 284, which shows the distinction between a tax on transportation and a tax upon its fruits, realized and reduced to possession, so as to have become part of the general capital and property of the tax-payer. But here it is not a tax on the profits and income after they have been realized from the business. It is a charge explicitly made as the price of the privilege of navigating the Mississippi river between New Orleans and the Gulf, in the coast wise trade; as the conditions on which the state of Louisiana.consents that the boats of the plaintiff in error may be employed by him according to the terms of the license granted under the authority of congress. The sole occupation sought to be subjected to the tax is that of using and enjoying the license of the United States to employ these particular vessels in the coasting trade; and the state thus seeks to burden with an exaction, fixed at its own pleasure, the very righi to which the plaintiff in error is entitled under, and which he derives from, the constitution and laws of the United States. The Louisiana statute declares expressly that if he refuses or neglects to pay the license tax imposed upon him, for using his boats in this way, he shall not be permitted to act under and avail himself of the license granted by the United States, but may be enjoined from so doing by judicial process. The conflict between the two authorities is direct and express. What the one declares may be done without the tax, the other declares shall not be done except upon payment of the tax. In such an opposition, the only question is, which is the superior authority? and reduced to that, it furnishes its own answer.
The judgment of the supreme court of Louisiana is accordingly reversed, and the cause remanded, with directions to render a judgment reversing that of the Third district court for the parish of Orleans, and directing that court to render a judgment dismissing the petition of the city of New Orleans.
By stipulation of counsel on file, the same judgment is to be entered in the cases of E. N. Y v. City of New Orleans, No. 34, and Eclipse Tow-boat Co. v. City of New Orleans, No. 35.
(November 3, 1884.) 1. INDIAN-CITIZENSHIP-FOURTEENTH AMENDMENT.
An Indian, born a member of one of the Indian tribes within the United States, which still exists and is recognized as a tribe by the government of the United States, who has voluntarily separated himself from his tribe, and taken up his residence among the white citizens of a state, but who has not been naturalized or taxed or recognized as a citizen, either by the United States or by the state, is not a citizen of the United States, within the meaning of the first section of the four
teenth article of amendment of the constitution. 2. SAME-AVERMENTS IN PETITION.
A petition alleging that the plaintiff is an Indian, and was born within the United States, and has severed his tribal relation to the Indian tribes, and fully and completely surrendered himself to the jurisdiction of the United States, and still so continues subject to the jurisdiction of the United States, and is a bona fide resident of the state of Nebraska and city of Omaha, does not show that he is a citizen of the United States under the fourteenth article of amendment of the constitution.
HARLAN and Woods, JJ., dissenting. In Error to the Circuit Court of the United States for the District of Nebraska.
A. J. Poppleton and J. L. Webster, for plaintiff in error. G. M. Lamberton, for defendant in error.
GRAY, J. This is an action brought by an Indian, in the circuit court of the United States for the district of Nebraska, against the registrar of one of the wards of the city of Omaha, for refusing to register hiin as a qualified i voter therein. The petition was as follows:* "John Elk, plaintiff, complains
of Charles Wilkins, defendant, and avers that the matter in dispute herein ex. ceeds the sum of five hundred dollars, to-wit, the sum of six thousand dollars, and that the matter in dispute herein arises under the constitution and laws of the United States; and, for cause of action against the defendant, avers that he, the plaintiff, is an Indian, and was born within the United States; that more than one year prior to the grievances hereinafter complained of he had severed his tribal relation to the Indian tribes, and had fully and completely surren. dered himself to the jurisdiction of the United States, and still so continues subject to the jurisdiction of the United States; and avers that, under and by virtue of the fourteenth amendment to the constitution of the United States, he is a citizen of the United States, and entitled to the right and privilege of citizens of the United States. That on the sixth day of April, 1880, there was held in the city of Omaha (a city of the first class, incorporated under the general laws of the state of Nebraska, providing for the incorporation of cities of the first class) a general election for the election of members of the city council and other oflicers for said city. That the defendant, Charles Wilkins, held the office of and acted as registrar in the Fifth ward of said city, and that as such registrar it was the duty of such defendant to register the names of all persons entitled to exercise the elective franchise in said ward of said city at said general election. That this plaintiff was a citizen of and had been a bona fide resident of the state of Nebraska for more than six months prior to said sixth day of April, 1880, and had been a bona fide resident of Douglas county, wherein the city of Omaha is situate, for more than forty days, and in the Fifth ward of said city more than ten days prior to the said sixth day of April, and was such citizen and resident at the time of said election, and at the time of his attempted registration, as hereinafter set forth, and was in every way qualified, under the laws of the state of Nebraska and of the city of Omaha, to be registered as a voter, and to cast a vote at said election, and complied with the laws of the city and state in that behalf.* That on or about the fifth day of April, 1880, and prior to said election, this plaintiff presented himself to said Charles Wilkins, as such registrar, at his otlice, for the purpose of having his name registered as a qualified voter, as provided by law, and complied with all the provisions of the statutes in that regard, and claimed that, under the fourteenth and fifteenth amendments to the constitution of the United States, he was a citizen of the United States, and was entitled to exercise the elective franchise, regardless of his race and color; and that said Wilkins, designedly, corruptly, willfully, and maliciously, did then and there refuse to register this plaintiff, for the sole reason that the plaintiff was an Indian, and therefore not a citizen of the United States, and not, therefore, entitled to vote, and on account of his race and color, and with the willful, malicious, corrupt, and unlawful design to deprive this plaintiff of his right to vote at said election, and of bis rights, and all other Indians of their rights, under said fourteenth and fifteenth amendments to the constition of the United States, on account of his and their race and color. That on the sixth day of April this plaintiff presented himself at the place of voting in said ward, and presented a ballot, and requested the right to vote, where said Wilkins, who was then acting as one of the judges of said election in said ward, in further carrying out his willful and malicious designs as aforesaid, declared to the plaintiff and to the other election officers that the plaintiff was an Indian, and not a citizen, and not entitled to vote, and said judges and clerks of election refused to receive the vote of the plaintiff,
for that he was not registered as required by law. Plaintiff avers the fact to be that by reason of said willful, unlawful, corrupt, and malicious refusal of said defendant to register this plaintiff, as provided by law, he was deprived of his right to vote at said election, to his damage in the sum of $6,000. Wherefore, plaintiff prays judgment against defendant for $6,000, his damages, with costs of suit.
The defendant filed a general demurrer for the following causes: (1) Thata the petition did not state facts sufficient to*constitute a cause of action; (2) that the court had no jurisdiction of the person of the defendant; (3) that the court had no jurisdiction of the subject of the action. The demurrer was argued before Judge MCCRARY and Judge DUNDY, and sustained; and, the plaintiff electing to stand by his petition, judgment was rendered for the defendant, dismissing the petition, with costs. The plaintiff sued out this writ of error.
By the constitution of the state of Nebraska, art. 7, § 1, "every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the state six months, and in the county, precinct, or ward for the term provided by law, shall be an elector: First, citizens of the United States; second, persons of foreign birth who shall have declared their intention to become citizens, conformably to the laws of the United States on the subject of naturalization, at least thirty days prior to an election.” By the statutes of Nebraska, every male person of the age of 21 years or upward, belonging to either of the two classes so defined in the constitution of the state, who shall have resided in the state 6 months, in the county 40 days, and in the precinct, township, or ward 10 days, shall be an elector; the qualifications of electors in the several wards of cities of the first class (of which Omaha is one) shall be the same as in precincts; it is the duty of the registrar to enter in the register of qualified voters the name of every person who applies to him to be registered, and satisfies him that he is qualified to vote under the provisions of the election laws of the state; and at all municipal, as well as county or state elections, the judges of election are required to check the name, and receive and deposit the ballot, of any person whose name appears on the register. Comp. St. Neb. 1881, c. 26, § 3; c. 13, § 14; c. 76, SS 6, 13, 19.
*The plaintiff, in support of his action, relies on the first clause of the first section of the fourteenth article of amendment of the constitution of the United States, by which “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside;" and on the fifteenth article of amendment, which provides that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” This being a suit at common law in which the matter in dispute exceeds $500, arising under the constitution of the United States, the circuit court had jurisdiction of it under the act of March 3, 1875, c. 137, § 1, even if the parties were citizens of the same state. 18 St. 470; Ames y. Kansas, 111 U. S. 419; S. C. 4 Sup. Cr. REP. 437. The judgment of that court, dismissing the action with costs, must have proceeded upon the merits, for if the dismissal had been for want of jurisdiction, no costs could have been awarded. Mayor v. Cooper, 6 Wall. 247; Mansfield, C. & L. M. Ry. v. Swan, 111 U. S. 379; S. C. 4 Sup. Ct. REP. 510. And the only point argued by the defendant in this court is whether the petition sets forth facts enough to constitute a cause of action. The decision of this point, as both parties assume in their briefs, depends upon the question whether the legal conclusion, that under and by virtue of the fourteenth amendment of the constitution the plaintiff is a citizen of the United States, is supported by the facts alleged in the petition and admitted by the demurrer, to-wit: The plaintiff is an Indian, and was born in the United States, and has severed his