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the applicability of section 3709, Revised Statutes, relative to advertisement for proposals for supplies, and by the latter opinion it was held that the institution is in the Department of the Interior in the sense that its transactions are under the supervision of the head of that Department, and that he has a certain jurisdiction and responsibility regarding it. It is true that since that opinion was rendered, under the act of July 1, 1898 (30 Stat., 597, 624), the directors of the institution have control of the disbursement of all the appropriations by Congress for its benefit, the accounts for which shall be settled at the Treasury Department; nevertheless, other provisions of existing law, such as section H1 of the Revised Statutes, and section 4868 requiring the president and directors to report annually to the Secretary of the Interior the condition of the institution, embracing many items of its operations besides its receipts and disbursements, lead me to say that the function of the Treasury in the premises appears to be confined to its usual and appropriate duty of adjusting and settling accounts, and that the enlargement of the control by the directors over the disbursement of appropriations is to be explained by the view of 20 Opinions, 652, to which I have before referred. And in the case of the Freedmen's Hospital and Asylum, no act seems to have been passed in the least changing the situation or affecting the exact application of Mr. Olney's opinion to that institution now, as well as when the opinion was delivered in 1893.

As in the case of the Columbia Institution, the president and directors of the Washington Hospital for Foundlings are required by the law (16 Stat., 92) to report annually to the Secretary of the Interior the condition of the institution. Although annual appropriations for its support have uniformly been carried in the acts making appropriations for the expenses of the government of the District of Columbia, and although there may be, therefore, a certain relation not very clearly defined between the institution and the District government, I think that your supervision or jurisdiction over the institution, as past practice has determined its nature and extent, remains substantially unaf fected, equally with the other institutions named, either by the legislation cited which connects the District government with the institution, or by the act of June 6, 1900, creating a Board of Charities for the District of Columbia. Very respectfully,




The State harbor commissioners of California are charged by the laws of that State with the supervision and control of the wharves and landings of the harbor of San Francisco, with the right to collect dockage,

wharfage, rent, or toll. The imposition of a toll or charge by such commissioners on merchandise, being the property of the United States, passing to or over the wharves at San Francisco, is constitutional and valid; the charge being for a service rendered, the Government is not entitled to such service

free of toll. The same rule would apply to the charge of the Southern Pacific Company, called a “State toll,” if this charge was in fact an authorized charge for the use of any part of the State's terminal system, includ

ing the transfer railroad along the water front to the wharves. Such toll or charge is not a tax upon or in respect of interstate traffic,

nor a tax upon the instrumentalities and agencies of the General Government, within the prohibitions of the Constitution, but is a charge for the use of property and facilities furnished the Government by the State of California.


October 17, 1900. SIR: I have the honor to acknowledge the receipt of your communications and references of July 2, July 11, and August 31, with their indorsements and inclosures, which lay before me the following facts, in substantial accordance with your own statements thereof, namely:

On September 15, 1899, the quartermaster at San Antonio, Tex., issued two bills of lading for certain Government property, live stock and other freight, belonging to and en route with the Thirty-third United States Volunteer Infantry from San Antonio to Manila via San Francisco. The Southern Pacific Company (Pacitic system), in addition to

their bill of transportation proper from San Antonio to San Francisco, rendered a bill amounting to $5.30 for "Amount of State toll paid State of California by Southern Pacific Company on shipments of horses and property belonging to the Thirty-third Infantry en route from San Antonio to San Francisco, etc.,” which is based upon a circular of the railway company (No. G. F. 0. 79, dated San Francisco, July 20, 1897), reading in part as follows:



“To AGENTS: State toll is collected on all west-bound freight received at San Francisco, whether local or for export, and on all east-bound freight forwarded from San Francisco to points west of Ogden, Utah, El Paso, Texas, Albuquerque, New Mexico, and south of Portland, Oregon, as follows, except when otherwise specified.

This in addition to regular transportation charge. Arrangements have been made with the transfer company to pay State toll on exported freight which it delivers to vessels at wharves in San Francisco."

The circular indicates that this State toll is separate from the company's own transfer or switching charge between their depot and the tracks, wharves, and depots on the water front at San Francisco.

An account, varying slightly from the company's bill, having been stated by the chief quartermaster, Department of Texas, based upon the published tariffs, including the cireular referred to, that officer suggested a doubt as to the right of a State to lay any impost or toll on the property of the United States, and after intermediate correspondence you advise me that the superintendent of the army transport service at San Francisco paid the board of State Harbor Commissioners the sum of $27.35 for tolls on 547 tons of merchandise shipped on the Grant, which vessel carried the Thirty-third Infantry, this charge being at the rate of 5 cents per ton on all merchandise passing over the wharves under the commissioners' jurisdiction, and being in addition to any tolls which may have been charged by the Southern Pacific Company.


l'pon this statement of facts you request my opinion upon the legality, first, of the toll imposed by the State of California upon Government property passing over its wharves, docks, and terminals; and, second, of the toll imposed by the Southern Pacific Company, and alleged by it to be a State toll.

In reply, it occurs to me to suggest that the State toll referred to in the railroad bill is part of the State charges for the use of the wharves and of the terminal facilities leading to them, and is included in the sum of $27.35 paid by the superintendent of transports to the State Harbor Commissioners. In other words, this sum was in addition to any tolls which may have been charged by the railroad company, because the latter may not yet have discovered that the State tolls had been paid with respect to the merchandise for which they made the charge, and therefore they are not entitled to collect it. Furthermore, the schedule of rates of the Southern Pacific Company's circular and of the board of State Harbor Commissioners is identical, and plainly seems to refer to the same connected service or facilities.

The solution as to the fact may not be so simple as this, but if it should be so, of course no shipper, whether the Government or a private party, can be compelled to pay the same charge twice, and there would be an end of the question in this case, because if the “State toll,” whatever it means, has already been paid, the constitutional inquiry is merely a moot question in the present instance. Or, on the other hand, the railroad company's bill for State toll, while not included or paid in the bill of the Harbor Commissioners, may be a legitimate charge for use of a portion of the terminal services and facilities of the State related to the wharves, the Harbor Commissioners' bill including only State tolls or charges on the wharves, and the railroad company's bill the State toll for passage over tracks leading to the wharves. The fact about this is not yet clear.

On the whole, I think the fair deduction from your statements is that the railroad charge is not a State tax upon or in respect of interstate traffic which the company is endeavoring to shift, but is a charge for the use of some portion of the State terminals which the company is the agent to collect. If this is correct, but one question in substance is presented, viz, whether the wharfage tolls and related terminal charges of the State of California are valid against the Government.

The initial suggestion is that a State has no right to lay any impost or toll on the property of the United States. The idea thus seems to be entertained that the United States, acting in the sovereign capacity and for national purposes, is entitled to be exempted from all such charges as are here involved. Tho general doctrine undoubtedly is that public property is not subject to taxation. (1 Desty on Taxation, 3+, 35, and auth. cit.) It is a fundamental principle, of course, that the instrumentalities and agencies of the General Government may not be taxed by a State, and these include land, which is property, as many of the instrumentalities and agencies of Government are. Beginning with the leading case of McCulloch v. Maryland (4 Wheat., 316), these principles have been well established. (Osborn v. Bank of. United States, 9 Wheat., 738; New York v. Commissioner's of Taxes, 2 Wall., 200; Society for Savings v. Coite, 6 Wall., 594; Dobbins v. Commissioners of Erie County, 16 Pet., 435; Railroad Co. v. Peniston, 18 Wall., 5; McGoon v. Scales, 9 Wall., 23; Van Brocklin v. State of Tennessee, 117 U. S., 151.) But, just as it has been determined that the Government of the United States has no right to use a patented invention without compensation to the owner, under the constitutional provision that in the exercise of the power of eminent domain it may take private property for public use, but not without making just compensation therefor (United States v. Burns, 12 Wall., 246; Cammeyer v. Newton, 94 U. S., 225; James v. Campbell, 104 U.S., 356; Hollister v. Benedict Mfg.Co., 113 U. S., 59; United States v. Palmer, 128 U. S., 262; Belknap v. Schild, 161 U. S., 10), so it has been adjudged that the United States Government is not entitled to have property or troops transported free over a railroad, even where a land grant provided that the road shall remain a public highway for the use of the Government free from all toll or other charges for transportation, since that act did not include free use of rolling stock (Lake

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