This case is here on appeal under section 237(a) of the Judicial Code, 28 U.S.C. § 344(a), 28 USCA § 344(a), from a judgment of the Supreme Court of Alabama, 229 Ala. 624, 159 So. 53, which affirmed a money judgment of the circuit court of Mobile county for the recovery of 'harbor fees' from appellant.
Appellee, the State Docks Commission, is a state agency authorized to conduct 'the operation of all harbors and seaports within the State' and to 'adopt rules not inconsistent with the provisions of this Act for the purpose of regulating, controlling and conducting the said operation' and with power 'to fix from time to time reasonable rates of charges for all services and for the use of all improvements and facilities provided under the authority of this Act.' No. 303, Alabama Gen. Acts of 1923, p. 330; No. 1, Ala. Gen. Acts of 1927, pp. 1, 8, 12, 13.
By resolution of March 5, 1924, appellee adopted rules and regulations for the Port of Mobile, for the control, under the direction of a 'chief wharfinger' or harbor master, of the movement, disposition, and anchorage of vessels passing in and out of and using the port. By resolution of February 11, 1928, these rules were readopted and a new rule was added prohibiting the discharge of fuel oil into the harbor by vessels and manufacturing plants. The rules also established a schedule of 'harbor fees,' for mooring and shifting vessels in the harbor, and for all vessels of specified classes entering the harbor, including a fee of $7,50 for vessels '500 tons and over.' Appellants operate vessels of more than 500 tons in the coastwise trade between New York and Mobile, and the present suit was brought by appellee to recover fees incurred by reason of the call of appellant's vessels at Mobile.
The authority of appellee, under the laws and Constitution of the state, to adopt the harbor rules and schedule of fees is not questioned, and the reasonableness of the $7.50 fee is conceded. But appellant insists that its imposition is prohibited by article 1, § 10, cl. 3, of the Constitution, which provides that 'no State shall, without the Consent of Congress, lay any Duty of Tonnage,' and that it is a burden on interstate commerce forbidden by the commerce clause (Const. art. 1, § 8, cl. 3).
The Supreme Court of Alabama found that the contested fee was a charge made for the policing of the harbor under the rules adopted by the appellee to insure the safety of vessels and the dispatch of shipping within the port, by regulating the speed of vessels, their movement and anchorage, and by providing for their protection from danger of fire occasioned by the uncontrolled discharge of oil into the harbor.
The record amply supports this conclusion. Appellee's resolution adopting the harbor fees declared that they were 'for the purpose of meeting the expense attendant upon the supervision of the port and the execution of the regulations and providing for the proper accommodation of vessels at this port.' The rules are plainly devised to insure the safety of vessels and to facilitate their use of the harbor. They regulate, within the harbor, the disposition of the rigging of sailing ships, the speed and mooring of vessels, the selection and change of their anchorage, their loading and unloading, and the use of lighters, barges, and rafts. They require the arrival of all vessels at the port to be reported to the chief wharfinger, and charge him with 'responsibility for selecting and changing anchorages of and for the movements of vessels into and out of slips or berths, and with all other ship movements that effect a fair joint use of the facilities of the port.' The evidence shows that ship movements within the port are carried on under his active supervision and control.
The $7.50 fee is conceded not to be a charge for the use of the state docks or for mooring and shifting vessels, for which specific charges are levied. It is the only fee attributable to the general service rendered by the commission in securing the benefits and protection of the rules to shipping in the harbor. We accept the conclusion of the state court that it is charged for a policing service rendered by the state in the aid of the safe and efficient use of its port, and we address ourselves to the question whether such a fee is forbidden by the Constitution either because it is a 'duty of tonnage' or an unwarranted burden on interstate commerce.