[Syllabus from pages 102-104 intentionally omitted]
CERTIFICATE of Division from the Circuit Court for the Southern District of New York. In the superior court of the city of New York, the plaintiffs instituted an action of debt for the recovery of $15,000, the amount of certain penalties alleged to have been incurred by the defendant, under the provisions of an act of the legislature of the state of New York, passed February 11th, 1824, entitled 'an act concerning passengers in vessels coming to the port of New York.' The defendant, being an alien, removed the cause into the circuit court of the United States, and the pleadings in the case were carried on to issue in that court.
The act of the legislature of New York provides, in the first section, that the master of any ship or vessel arriving in the port of New York from any country of the United States, or from any other state of the United States, shall, within twenty-four hours after his arrival, make a report, in writing, to the mayor of the city of New York, or, in his absence, to the recorder, on oath or affirmation, of the name, place of birth, and last legal settlement, age and occupation, of every person brought as a passenger in the ship or vessel, or on board of her, on her last voyage, from any country out of the United States, or from any of the United States, into the port of New York, or into any of the United States, and of all persons landed from the ship, during the voyage at any place, or put on board, or suffered to go on board any other vessel, with intention of proceeding to the city of New York; under a penalty, on the master and commander, the owner, consignee or consignees, of $75, for each passenger not reported, and for every person whose name, place of birth, last legal settlement, age and occupation, shall be falsely reported.
The second section authorizes the mayor, &c., to require from every master of such vessel that he be bound with sureties in such sum as the mayor, &c., shall think proper, in a sum not to exceed $300, for every passenger, to indemnify and save harmless the mayor, &c., of the city of New York, and the overseers of the poor of the city, from all expenses of the maintenance of such person, or of the child or children of such person, born after such importation; in case such person, child or children, shall become chargeable to the city within two years: and if, for three days after arrival, the master of the vessel shall neglect to give such security, the master of the vessels and the owners shall, severally and respectively, be liable to a penalty of $500, for each and every person not a citizen of the United States, for whom the mayor or recorder shall determine that bonds should have been given.
The third section enacts, that whenever any person brought in such vessel, not being a citizen of the United States, shall, by the mayor, &c., be deemed liable to become chargeable on the city, the master of the vessel shall, on an order of the mayor, &c., remove such person, without delay, to the place of his last settlement; and in default, shall incur all the expenses attending the removal of such person and of his maintenance.
The fourth section provides, that every person, not being a citizen of the United States, entering the city of New York, with an intention of residing therein, shall, within twenty-four hours, make a report of himself to the mayor, stating his age, occupation and the name of the ship or vessel in which he arrived, the place where he landed, and the name of the commander of the vessel.
The sixth section subjects the ship or vessel in which such passengers shall have arrived, to the penalties imposed by the former sections, for any neglect of the provisions of the law by the master or owner; and authorizes proceedings by attachment against the ship or vessel for the same, in the courts of New York.
The declaration set forth the several provisions of the act, and alleged breaches of the same; claiming that the amount of the penalties stated had become due in consequence of such breaches. To this declaration, the defendant entered a demurrer, and the plaintiffs joined in the same.
The following point was presented to the court on the part of the defendant: 'That the act of the legislature of the state of New York, mentioned in the plaintiff's declaration, assumes to regulate trade and commerce between the port of New York and foreign ports, and is unconstitutional and void.' Upon this question, the opinion of the judges being opposed, the same was certified to this court, at the request of the plaintiffs.