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 steam-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 vessel 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 coastwise, 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 without 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 which 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.'