No State shall, without the Consent of Congress, lay any Duty of Tonnage
, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
(13) The Tonnage Clause says that "No State shall, without the Consent of Congress, lay any Duty of Tonnage." (14) Traditionally, the Tonnage Clause has been interpreted to apply broadly to any duty on a ship charged "for the privilege of entering, lying in, or trading in a port." (15) Because the passenger fees here were levied upon the ships and assessed on a per-passenger basis, they fell within the purview of the clause.
City of Valdez (57) case focused on whether a fee charged by the City of Valdez was best characterized as a duty of tonnage, or a property tax.
The Constitution imposed two limits on state financial exactions: (1) a requirement of congressional consent before a state could "lay any Duty of Tonnage" (9) and (2) with one exception, a like requirement before a state could "lay any Imposts or Duties on Imports or Exports." (10) The Constitution also authorized Congress to impose financial exactions.
The Constitution usually employed the word "Duty" in the context of trade: "Duty of Tonnage," (30) duties on imported slaves, (31) duties on imports and exports.
A "Duty of Tonnage" is a tax assessed by a state actor on
analysis of what constitutes an impermissible duty of tonnage is the
(4) What is a duty of tonnage
, and how is it different from an "impost or duty"?
When the Constitution was adopted, the Free Rivers Doctrine was one of the reasons for the inclusion of the Duty of Tonnage Clause.
Relying on one of its own decisions, the Supreme Court of Appeals of West Virginia decided that the Free Rivers Doctrine does not apply in West Virginia.(9) It summarily rejected the continued validity of the Northwest Ordinance and the Virginia Compact, it ignored or misinterpreted more than 200 years of Duty of Tonnage Clause, Supremacy Clause and Commerce Clause jurisprudence, and it declared that interstate river traffic is fair game for the State's tax collector.
Added to the Constitution in the "waning days of the Philadelphia Convention," (52) the Tonnage Clause provides, in relevant part, that "[n]o State shall without the Consent of the Congress, lay any duty of Tonnage." (53) The term "duty of Tonnage," as used in the Constitution, refers to a tax "imposed on ships, based on their cargo capacity, for the privilege of entering or leaving a port." (54) This interpretation was also meant to distinguish a prohibited tax from the acceptable practice of assessing fees to ships based on their use of specific services, such as wharfage, (55) towage, (56) or pilotage (57) fees.
The Framers, as they did so often throughout the text of the Constitution, left the Tonnage Clause short, simple, and open to interpretation, indicating only that a state shall not "lay any Duty of Tonnage." (90) Though it is clear that the Framers intended the Clause to limit the states' power to tax commerce, (91) the text does not indicate the scope of the Clause nor does it define "Duty of Tonnage." As a result of this ambiguity, the Court has been required to interpret the Clause.