St Louis v. The Ferry Company
ERROR to the Circuit Court for the District of Missouri.
A statute of Missouri enacts that 'shares of stock and all other interests held in steamboats, keel-boats, wharf-boats, and all other vessels,' shall be taxable for State purposes; and by its charter the city of St. Louis has authority to tax all property within the city, so taxable.
In this state of statutory enactment the city authorities of St. Louis laid a tax on the value of all ferry-boats used by the Wiggins Ferry Company, in ferrying passengers and cargo on the Mississippi River, between the city of St. Louis, Missouri, and East St. Louis, in Illinois, on the opposite shore. The ferry company refused to pay the tax, on the ground that these boats were not 'property within the city,' and the question was whether they were so or not.
The case as found by the court below (to which it had been submitted under the act of March 3d, 1865),  was this:
The ferry company was incorporated by the laws of Illinois, and had its principal office in St. Louis, Missouri. There its president, vice-president, treasurer, superintendent, and other chief officers resided; there the ordinary business meetings of the directors were held, and there the seal of the corporation was kept. The company's minor officers, such as engineers and pilots on its ferry-boats, resided in Illinois, opposite the city of St. Louis, where its real estate was situated, also its warehouse and some other property. The ferry-boats, when not in actual use, were laid up by the Illinois shore, and were forbidden, by a general ordinance of the city of St. Louis regulating ferries and ferry-boats, to remain at the St. Louis wharf or landing longer than ten minutes at a time. The city exacted from the company an annual ferry license, which was paid. It permitted the company to erect landing or wharf-boats at its wharf or public landing, for the convenience and exclusive use of its ferry-boats, for which wharf-boats the city charged the company a stipulated annual wharfage, which was also paid. The company was assessed and taxed for the value of these wharf-boats within the city limits, in addition to the ferry license and wharfage.
The stockholders of the ferry company resided mainly in St. Louis. Some, however, resided in Ohio, some in New York, and some elsewhere, but none in Illinois. The meetings of the company as a corporation for the election of directors had been generally held in Illinois, but the meetings of the directors for the election of its officers and appointment of its employees had been generally held in St. Louis, Missouri. All the principal business of the company done by its directors, superintendent, and other agents, had been transacted in St. Louis. The money collected and received by it for ferriages and other dues were kept in St. Louis, and the books of the company were kept there, and some of the disbursements of the company were there made by its treasurer. The personal property belonging to the company, assessed for taxes by the city, for which these suits were brought, consisted solely of its already mentioned ferry-boats. On these as well as on its other property it was duly assessed in Illinois, and paid taxes there. The ferry-boats were enrolled at St. Louis under the laws of the United States; that is to say, under the acts of 1789 and 1792, which require every vessel to be registered in the district to which she belongs, and declare that her home port shall be that at or near to which her owner resides.
Upon this same state of facts, the Supreme Court of Missouri, in The City of St. Louis v. Wiggins Ferry Company,  had adjudged that the company was bound to pay the tax.
The court below decided that the ferry company, being a corporation created by the State of Illinois, and the ferry-boats not being within the limits of St. Louis except as they habitually touched at its wharf for the delivery of passengers and cargo, was not taxable for its boats by the city, as property within it. The fact that the principal business office of the company was in St. Louis, and that the ferry-boats were enrolled at the port of St. Louis, under the United States laws, did not, as the court below considered, essentially change the case. Judgment having been accordingly entered for the ferry company, the city excepted to the law as declared by the court upon the facts, and tendered its bill of exceptions, which was signed and sealed.
Mr. J. M. Krum, for the plaintiff in error:
Were these boats 'within the city' of St. Louis? That is the only question in the case.
The enrolment at the port of St. Louis is not indeed conclusive as to the situs of the property. It may but indicate the domicile or home port of the vessels, but it is a circumstance to be considered in connection with the other facts in determining the question at issue.
What are these other facts? The managers of the boats resided in St. Louis, and there received and disbursed the earnings of the boats, keeping their office there, and the ferry company itself keeping its principal office there. These facts, taken in connection with the fact that the boats had already been enrolled at the last-named port, lead to the conclusion that the property was 'within' the city of St. Louis. It is manifest that all the practical, life-giving, and fiscal operations of this corporation were performed within the city of St. Louis. There was its head and the centre of its operations.
The payment of the tax in Illinois neither proves nor tends to prove that the situs of the property was in that State. Nor does the payment of a ferry-license to the city of St. Louis and of a wharfage tax on the wharf-boats of the company show anything contrary to our view. These are matters foreign to the question.
The question now before this court was adjudicated in The City of St. Louis v. Wiggins Ferry Company. The facts in that case were the same as in this. That decision is a decision of the court of last resort of Missouri, construing and giving effect to its laws in respect to property situate within and owned or claimed by a resident of the State. The refusal of the court below to conform its judgment to the decision of the Supreme Court of Missouri is good ground for reversing the judgment in this case.
Messrs. M. Blair and F. A. Dick, contra:
The boats were not 'within the city.'
A corporation actually and permanently resides within the State by whose law it is created; and there has the legal status of a citizen and inhabitant of such State, where only its stockholders can assemble and act as one body. 
The officers and agents of the company who actually remain with and control the boats do not reside in Missouri, 'but opposite the city of St. Louis, where its real estate is situated, also its warehouse and some other property.' The boats when not running are laid up at the same place; and it is contrary to the city ordinance concerning ferry-boats, when on the St. Louis side, that they remain there 'longer than ten minutes at a time.' The point of departure on each trip of the boats was from the port where she was laid up and at rest. To that port each boat returned, and when it so returned, and not until then, was such trip at an end. Under such a state of facts there is no room for a constructive presence in St. Louis or a constructive possession of the boats by the general or fiscal officers of the company.
The home port of a vessel, when owned by one person, is that at or near which the owner usually resides; and this is not changed by her enrolment at another port, especially when the first-named port is not a port of enrolment. This company, as we have said, being created by Illinois, resides there. 
But there are higher grounds on which to rest the unlawfulness of the tax. It is imposed upon a National vessel engaged in commerce between two of the States on a navigable river. Vessels so engaged are subject only to National taxes and regulations, and are expressly withdrawn from State taxation. A tonnage tax is simply a tax upon vessels, and belongs exclusively to the National government under the provisions giving power to Congress to collect taxes and duties and to regulate commerce with foreign nations and among the several States; and having belonged to the States before the adoption of the Constitution, was surrendered by them in the clause saying that 'no State shall, without the consent of Congress, lay any duty of tonnage.' [The learned counsel went into a full argument on this point.]
Mr. Justice SWAYNE delivered the opinion of the court.
^1 The reader who does not recall the provisions of this act may see then supra, towards the bottom of page 141.
^2 40 Missouri, 580.
^3 Insurance Co. v. Francis, supra, 210.
^4 The Golden Gate, Newberry, 308; Hays v. Pacific Steamship Co., 17 Howard, 596.