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Barnes » Oharlos F

Oyster tonnaf,e tax on ooiniierce illegal

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FILMED BY PRESERVATION RESOURCES, BETHLEHEM, PA.

Oyster Tonage Tax on Commerce Illegal

To Chas. F. Barnks, Esq.

Sir : The legal status of the parties to a paper purport-
ing to be a receipt under protest of payor of $303, made by
Captain Samuel Freeman, of Portland, State of Mjiine,
master of the schooner D. Prescott, of said City and State,
which sum of $303, one John W. Ames, alleged inspector of
oysters for Nansemond county. State of Virginia, claimed
of the said Freeman as a tax, under the statute of said State
of Virginia, on the 16th April, 1866, is such that, as matter
of law, the said Freeman is entitled to recovery back of said
sum of $303, principal and interest, in an action of assump-
set in a declaration for money had and received.

The record shows said sum to have been demanded and
received under color of legal right by the statutes of Vir-
ginia, " as a lax levied on the H. Prescott, according to her ton-
nage, or in ratio of the same, as a measure of the amovrat to he
collected of said vessel, she being about 101 tons register meas-
urement ; which tax is made the condition of license to said
schooner to carry oysters from the waters of the State of Virginia.

Said sum would, therefore, seem to be a tax on tonnage at
the rate of $3 per ton, as matter of detail, for leave of trans-
portation; and in the gross it has the force and effect of an
export duty on the cargo of oysters as a condition of a right to
export the same, or of the use of the waters of said State, in mak-
ing said export. It would, therefore, seem to combine the fea-
tures both of a tonnage tax and export duty in the same exac-
tion.

Art. 1, sec. 10, par. 2, Cons. U. S., (Brightly’s Digest,)
enacts : “ That no State shall, without the consent of Con-

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gress, lay any impost or duties on imports or exports, ex-
cept what may be absolutely necessary to execute its in-
spection laws ; and that, in such case, the net proceeds
thereof shall be for the use of the Treasury of the United
States. The consent of Congress is a condition precedent, and
the United States resources, the recipient of the beneficial interest
of all State duties on imports or exports by the l-niv of the land ;
and without such consent no Slate shall lay any tonnage dntyf

The imposition of a tonnage tax is illegal, as an uncondi-
tional and independent State act ; and if a legalizing condi-
tion exists, such tax must go to the use of the 'Ireasury of the
United States, and not to the use of any State, county, or city,
or of the inspector of such Slate, county, or city of 'any export
therefrom.

By art. 1, sec. 9, par. 5, of U. S. Constitution, (Brightly’s
Digest,) it is further declared “ no tax on duty shall be laid
on articles of export from any State.” Oysters, it seems to
me, are as much articles of export as corn or wheat.

It is therefore obvious, that the law of the land prohibits
the raising of money by State authority alone, in the nature
of a tax or duty on oysters exported therefrom, nor can any
money, as a tax or duty on tonnage, be exacted, or legally
claimed, under color of license to export, or otherwise, the
products of any State, for the benefit of the Treasury there-
of, nor at all without the consent of Congress. Therefore
all moneys so exacted, if paid under protest, are moneys
taken against the will of the payor, and when, against the
express provisions of the Constitution of the United States,
which is the law of the land, such moneys are wrongfully
taken, and the State laws or municipal regulations, by force
of which said moneys are exacted, are void ; and whoever
makes the exaction, does it in his own wrong, and becomes
liable.

But the action must be brought against the individual

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who receives the money, whether he represents State or

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county authority, or both, and not against the State; (Amend.
U. S. Cons., art. 11,) it being now a well-settled principle of
law, as well as the policy of the Government of the United
States, that its authority bears directly on individuals, and
takes cognizance of their acts as individuals, rather than of
their acts, as representing the several States or their munici-
palities, and are held to answer as individuals, rather than
as representatives of States or counties, no individual being
allowed to maintain an action against a State under author-
of the United States.

Truly, your obedient servant,

R. K SEWALL.

Nansemond County, )

State of Virginia. j

I, Jno. W. Ames, an Inspector of Oysters for the County
and State aforesaid, do hereby certify that Capt. S. Free-
man, of the Schooner H. Prescott, of Portland, Maine,
101.48-100 tons burthen, has this day paid to me {under pro-
test) the sum of three hundred and three dollars, the amount
of tax assessed on said vessel, and the same is hereby
licensed to carry oysters from the waters of the State, accord-
ing to the laws thereof, for one year from the date hereof.

Given under my hand this 16th day of April, 1866.
[stamp.] (Signed) JNO. W. AMES,

Inspector.

-~k Acts of General Assembly of the State of Virginia, 1865-
. 66, chapter 5, entitled “ An act imposing a tax on oys-
^tei’s. * * :

7. Every captain or officer of a vessel which shall be em-
^oyed in carrying oysters taken in the waters of Virginia,
^all obtain from an inspector a license, for which he shall

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pav to said inspector a tax of three dollars per ton for every
ton said vessel may measure, according to the custom-house
enrollment or license ; and it shall be the duty of every such
captain or officer to have said license framed, and so set or
placed upon the quarter-deck or binnacle of his vessel as to
be exposed to the full view of every person who may board
said vessel ; which license shall authorize such vessel to carry
awav oysters for one year. Every captain or other officer of
a vessel, who shall load or carry away oysters in his vessel
without such license, shall pay a fine of not less than five
hundred nor more than two thousand dollars for each offence.

12. To enable the inspector to carry into effect the pro-
visions of this act, he may attach the vessel and appur-
tenances of any captain or officer failing or refusing to obtain
the license and pay the tax herein provided for; and in the
execution of such attachment, the said inspector may summon
the powers of the county, and is hereby invested with all the
power and duties of a sheriff tor the collection of othe

taxes.

Published by C. F. BARNES.