1849 United States Supreme Court case
Smith v. Turner; Norris v. Boston, 48 U.S. (7 How.) 283 (1849), were two similar cases, argued together before the United States Supreme Court, which decided 5–4 that states do not have the right to impose a tax that is determined by the number of passengers of a designated category on board a ship and/or disembarking into the State. The cases are sometimes called the "Passenger Case" or "Passenger Cases".
The Court did not produce a majority opinion. Eight Justices authored separate opinions, and the respective stances on various issues did not always align with other Justices in their concurrences or dissents. The issues addressed in the various opinions included the following:
The "Passenger Cases" is of historical interest. It portrays a diversity of views on several constitutional questions, especially whether the Commerce Clause prohibits any state regulation of interstate and foreign commerce in the absence of federal law or treaty. A bitter personal attack on Chief Justice Taney by Justice Wayne also provided a glimpse of the personal dynamics of the fractious court. However, the failure of the court to produce a majority opinion significantly diminished the value of the "Passengers Case" as formal legal precedent.
Background.
In each case, a state imposed a tax to be collected from the master of a ship entering a harbor of that state. In each case, the captain of a British ship challenged the constitutionality of the state law. Other facts varied between the two cases.
Smith v. Turner.
The State of New York imposed a tax on the passenger and the crew of each ship entering the Port of New York at the following rates:
The revenues collected would be first directed to cover expenses of a marine hospital to care for those who arrived in a sickened state at the Port of New York. Excess revenues not needed for the maintenance of the marine hospital were redirected to the Society for the Reformation of Juvenile Delinquents in the City of New York, a charitable organization caring for and confining delinquent boys.
Smith was the master of "Henry Bliss," a British ship. It sailed from Liverpool, England, and entered the Port of New York in June 1841. Steerage-class passengers, 295 in number, disembarked in New York City. Smith refused to pay the portion of the New York State tax that was measured by these steerage-class passengers. Turner, the Health Commissioner of the Port of New York, sued Smith for $295 in taxes due under New York State law.
"Norris v. City of Boston".
Massachusetts had a law that required an appropriate official to board each ship that had alien passengers on board and had entered one of its port of that State. The official was to examine each alien passenger and determine which of them, if any, were a lunatic, an idiot, maimed, aged, an infirm person, an incompetent, or a current or former pauper or who had been a pauper. Such a passenger would be permitted to disembark only upon the posting of a bond for $1000. Other alien passengers would be permitted to disembark upon the payment of a tax by the master, owner, consignee, or agent of such vessel amounting to the sum of $2.00 for each such passenger so disembarking.
The revenue collected would be directed to a fund to pay for the support of aliens who had become paupers in Massachusetts.
Norris was the master of the "Union Jack", a schooner from St. John, of the Province of New Brunswick, then part of the British Empire. It sailed from St. John and arrived in the Boston harbor on June 26, 1837. Norris was compelled by Bailey, an official of Boston, to pay $38.00 before the 19 alien passengers, none of whom being in such a state or having such a history requiring the posting of a bond, were permitted to disembark. Norris sued the City of Boston to recover the $38.00 as having been improperly compelled.
Decision.
In each case, the Supreme Court held 5-4 that part of the respective State statute to be unconstitutional. A federal constitutional principle, known as "standing," precludes the giving of an advisory opinion, a pronouncement of a decision that goes beyond the facts and record of the particular case. Thus, parts of the respective statutes not implicated by the specific facts of the case are not supposed to be ruled upon until a case involving a contest over such matters is actually presented to the court.
In "Smith v. Turner", the portion of the New York statute concerning the collection of a tax measured by the number of steerage-class passengers from ships arriving from a foreign port was declared unconstitutional.
In "Norris v. City of Boston", that portion of the Massachusetts law imposing a tax measured by the number of alien passengers allowed to disembark without a bond was struck down as unconstitutional.
Concurring opinions.
Justices McLean, Wayne, Catron, McKinley and Grier all concurred with the judgment of the United States Supreme Court in both cases. All five of the concurring Justices wrote a concurring opinion. The opinions of McLean and Wayne addressed the various issues that they considered to be implicated in both cases. Catron's opinion addressed only the Smith (New York) case; Grier's opinion addressed only the Norris (Massachusetts) case. Catron and Grier unequivocally joined each other's respective opinions. Wayne also endorsed Catron's and Grier's opinions. McKinley's opinion was limited to a discussion of the first clause of Article I, Section 9 of the US Constitution. (McKinley's opinion on that topic was also endorsed by Wayne.) McKinley may be deemed to be joining Grier's opinion (concerning the Norris case), as he stated that such opinion had expressed their "joint views in the cause coming up from Massachusetts" and that the writing of such opinion by Grier "has been done to [McKinley's] entire satisfaction."
McKinley remarked that he had "examined the opinions of... McLean and... Catron, and concur with the whole reasoning upon the main question." What McKinley viewed as that "main question" is not explained but probably referred to the apparently harmonious views of McLean and Catron concerning the nature of the Commerce Clause and its implications with respect to the reserved taxation and police powers of the states. The sequence in which the concurring opinions appear in the official reports follows the seniority of the respective concurring Justices who authored each opinion.
McLean's opinion.
Justice McLean, the most senior member of the Court at the time, began his opinion by weighing in on the debate concerning the nature of the Commerce Clause. He asserted that the Commerce Clause "is exclusively vested in Congress." 
Therefore, if the federal government does not regulate a particular area of foreign or interstate commerce, the omission is not an invitation to the states to provide interim regulation but is an expression of federal policy that the area should remain unregulated.
McLean derived that interpretation of the Commerce Clause from a fundamental rejection of the concept of concurrent power. Only one authority can exercise any given power, and the judicial task is to determine whether a particular subject falls within a power delegated to the federal government or within a power reserved to the states. McLean denied that a power may be exercised by the states unless the federal government chooses to exercise the same power when state regulation is trumped by the federal action. 
Although he recognized that both Congress and the states may impose a tax on the same object, he insisted that the respective taxations result from the exercise of distinct powers and do not represent any concurrent exercise of the same power.
It is unclear what role the Supremacy Clause had in McLean's constitutional theory since he apparently viewed each level of government as supreme in its own legitimate and distinct sphere of operations.
One of the key debates in the Passenger Cases concerned the question whether the transport of free persons, as distinct from goods and slaves, was to be included or excluded from the concept of "commerce" for purposes of the Commerce Clause. McLean construed the Commerce Clause to include the transport of free persons within its scope. In support, McLean cited the following passage from "Gibbons v. Ogden": "the power to regulate commerce applies equally to the regulation of vessels employed in transporting men who pass from place to place voluntarily, and to those who pass involuntarily."
McLean wrote in his opinion, "A state cannot regulate foreign commerce, but it may do many things which more or less affect it." Thus, the next judicial task was to discern whether the New York tax was a regulation of foreign and interstate commerce or merely an exercise of legitimate state authority having an incidental effect on foreign and interstate commerce.
McLean did not consider attempts on the part of a State to defend itself from the introduction of harm to be a regulation of commerce. Thus, McLean viewed exclusion of infectious people from the state as a quarantine measure and part of the state's reserved right to protect the health of its citizens and in no sense a regulation of foreign or interstate commerce. He further acknowledged that a state may charge a fee reflecting the actual cost of the inspection for disease. He also acknowledged a right for states to prevent the entry of paupers to prevent the imposition of an economic burden. However, McLean did not recognize an unqualified right of the states to screen new entrants: "Except to guard its citizens against diseases and paupers, the municipal power of a state cannot prohibit the introduction of foreigners brought to this country under the authority of Congress."
McLean rejected the characterization of the New York statute as a health measure. Although the revenues were applied in the first instance to a hospital, surplus revenues were diverted to a charitable society in New York City caring for delinquent boys. To McLean, a law that demanded payment beyond a fee for actual cost of inspection was a revenue measure, with no principled limitation that could be placed on the state as to the use of that revenue. McLean insisted that the law imposed a tax on passengers and crew and that if a tax of $1.00 per passenger could be extracted by New York, a higher tax could also be imposed, including in an amount that would completely stifle the commercial activity of transporting passengers into the Port of New York. McLean thus concluded that the New York statute at bar was a regulation of commerce and an intrinsic violation of the Commerce Clause.
McLean also considered the New York law a violation of Article I, Section 8, of the US Constitution, requiring all duties, imposts, and excises to be uniform throughout the United States. McLean considered the clause to be enforceable against the states as well as Congress and considered a tax on passengers entering the United States to be an "impost" and a state tax on such passengers to have the effect of making such imposts non-uniform.
He went beyond the facts of the case to comment (as dictum) that the tax, when applied to the crew and passengers of coastal vessels traveling from other states, violated the sixth clause of Article I, Section 9, prohibiting the imposition of duties on vessels traveling from one state to another.
McLean commented that under the Commerce Clause, the Massachusetts tax on immigrant passengers was unconstitutional. McLean did not refer to his views regarding uniformity of imposts in his short discussion of the latter case.
McLean did not join the vituperative debate concerning the manner in which the majority opinion in "City of New York v. Miln" was adopted, but he reconciled his assent to the majority opinion in the "Miln" decision with his opinion in the Passenger Cases by noting that the "Miln" case involved no question concerning the validity of a tax but only the validity of a reporting requirement.
Wayne's opinion.
Justice Wayne's concurrence with the judgment, although referring to several particular provisions of the US Constitution, was apparently derived from a holistic understanding of the general impact of all of its provisions on commerce as well as the nature of commerce as it exists, even in the absence of formal documents such as the Constitution or the preceding Articles of Confederation. His analysis was formed from a consideration of many provisions of Article I of theConstitution, including the proviso of the