Clause 3

Clause 3. 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.

TONNAGE DUTIES

The purpose of the Tonnage Clause is “to ‘restrai[n] the states themselves from the exercise’ of the taxing power ‘injuriously to the interests of each other.’ . . . In writing the Tonnage Clause, the Framers recognized that, if ‘the states had been left free to tax the privilege of access by vessels to their harbors the prohibition [in Article I, § 10, clause 2] against duties on imports and exports could have been nullified by taxing the vessels transporting the merchandise.’ ”2257 The prohibition against tonnage duties embraces all taxes and duties, regardless of their name or form, whether measured by the tonnage of the vessel or not, that, in effect, are charges for the privilege of entering, trading in, or lying in a port.2258 The Tonnage Clause, however, does not ban all “taxes which fall on vessels that use a State’s port, harbor, or other waterways. Such a radical proposition would transform the Tonnage Clause from one that protects vessels, and their owners, from discrimination by seaboard States, to one that gives vessels preferential treatment vis-à-vis all other property, and its owners, in a seaboard State.”2259 But it does not extend to charges made by state authority, even if graduated according to tonnage,2260 for services rendered to the vessel, such as pilot-age, towage, charges for loading and unloading cargoes, wharfage, or storage.2261

For the purpose of determining wharfage charges, it is immaterial whether the wharf was built by the state, a municipal corporation, or an individual. Where the wharf was owned by a city, the fact that the city realized a profit beyond the amount expended did not render the toll objectionable.2262 The services of harbor masters for which fees are allowed must be actually rendered, and a law permitting harbor masters or port wardens to impose a fee in all cases is void.2263 A state may not levy a tonnage duty to defray the expenses of its quarantine system,2264 but it may exact a fixed fee for examination of all vessels passing quarantine.2265 A state license fee for ferrying on a navigable river is not a tonnage tax but rather is a proper exercise of the police power and the fact that a vessel is enrolled under federal law does not exempt it.2266 In the State Tonnage Tax Cases,2267 an annual tax on steamboats measured by their registered tonnage was held invalid despite the contention that it was a valid tax on the steamboat as property.

KEEPING TROOPS

This provision contemplates the use of the state’s military power to put down an armed insurrection too strong to be controlled by civil authority,2268 and the organization and maintenance of an active state militia is not a keeping of troops in time of peace within the prohibition of this clause.2269

INTERSTATE COMPACTS
Background of Clause

Except for the single limitation that the consent of Congress must be obtained, the original inherent sovereign rights of the states to make compacts with each other was not surrendered under the Constitution.2270 “The Compact,” as the Supreme Court has put it, “adapts to our Union of sovereign States the age-old treaty-making power of independent sovereign nations.”2271 In American history, the compact technique can be traced back to the numerous controversies that arose over the ill-defined boundaries of the original colonies. These disputes were usually resolved by negotiation, with the resulting agreement subject to approval by the Crown.2272 When the political ties with Britain were broken, the Articles of Confederation provided for appeal to Congress in all disputes between two or more states over boundaries or “any cause whatever”2273 and required the approval of Congress for any “treaty confederation or alliance” to which a state should be a party.2274

The Framers of the Constitution went further. By the first clause of this section they laid down an unqualified prohibition against “any treaty, alliance or confederation,” and by the third clause they required the consent of Congress for “any agreement or compact.” The significance of this distinction was pointed out by Chief Justice Taney in Holmes v. Jennison:2275 “[A]s these words [‘agreement’ and ‘compact’] could not have been idly or superfluously used by the framers of the constitution, they cannot be construed to mean the same thing with the word treaty. They evidently mean something more, and were designed to make the prohibition more comprehensive. . . . The word ‘agreement,’ does not necessarily import any direct and express stipulation; nor is it necessary that it should be in writing. If there is a verbal understanding, to which both parties have assented, and upon which both are acting, it is an ‘agreement.’ And the use of all of these terms, ‘treaty,’ ‘agreement,’ ‘compact,’ show that it was the intention of the framers of the constitution to use the broadest and most comprehensive terms; and that they anxiously desired to cut off all connection or communication between a state and a foreign power; and we shall fail to execute that evident intention, unless we give to the word ‘agreement’ its most extended signification; and so apply it as to prohibit every agreement, written or verbal, formal or informal[,] positive or implied, by the mutual understanding of the parties.”2276 But, in Virginia v. Tennessee,2277 decided more than a half century later, the Court shifted position, holding that the unqualified prohibition of compacts and agreements between states without the consent of Congress did not apply to agreements concerning such minor matters as adjustments of boundaries, which have no tendency to increase the political powers of the contracting states or to encroach upon the just supremacy of the United States. Adhering to this later understanding of the clause, the Court found no enhancement of state power in relation to the Federal Government through entry into the Multistate Tax Compact, and thus sustained the agreement among participating states without congressional consent.2278

Subject Matter of Interstate Compacts

For many years after the Constitution was adopted, boundary disputes continued to predominate as the subject matter of agreements among the states. Since the turn of the twentieth century, however, the interstate compact has been used to an increasing extent as an instrument for state cooperation in carrying out affirmative programs for solving common problems.2279 The execution of vast public undertakings, such as the development of the Port of New York by the Port Authority created by compact between New York and New Jersey, flood control, the prevention of pollution, and the conservation and allocation of water supplied by interstate streams, are among the objectives accomplished by this means. Another important use of this device was recognized by Congress in the act of June 6, 1934,2280 whereby it consented in advance to agreements for the control of crime. The first response to this stimulus was the Crime Compact of 1934, providing for the supervision of parolees and probationers, to which most of the states have given adherence.2281 Subsequently, Congress has authorized, on varying conditions, compacts touching the production of tobacco, the conservation of natural gas, the regulation of fishing in inland waters, the furtherance of flood and pollution control, and other matters. Moreover, many states have set up permanent commissions for interstate cooperation, which have led to the formation of a Council of State Governments, the creation of special commissions for the study of the crime problem, the problem of highway safety, the trailer problem, problems created by social security legislation, and the framing of uniform state legislation for dealing with some of these.2282

Consent of Congress

The Constitution makes no provision with regard to the time when the consent of Congress shall be given or the mode or form by which it shall be signified.2283 While the consent will usually precede the compact or agreement, it may be given subsequently where the agreement relates to a matter which could not be well considered until its nature is fully developed.2284 The required consent is not necessarily an expressed consent; it may be inferred from circumstances.2285 It is sufficiently indicated, when not necessary to be made in advance, by the approval of proceedings taken under it.2286 The consent of Congress may be granted conditionally “upon terms appropriate to the subject and transgressing no constitutional limitations.”2287 Congress does not, by giving its consent to a compact, relinquish or restrict its own powers, as for example, its power to regulate interstate commerce.2288

Grants of Franchise to Corporations by Two States

It is competent for a railroad corporation organized under the laws of one state, when authorized so to do by the consent of the state that created it, to accept authority from another state to extend its railroad into such state and to receive a grant of powers to own and control, by lease or purchase, railroads therein and to subject itself to such rules and regulations as may be prescribed by the second state. Such legislation on the part of two or more states is not, in the absence of inhibitory legislation by Congress, regarded as within the constitutional prohibition of agreements or compacts between states.2289

Legal Effect of Interstate Compacts

Whenever, by the agreement of the states concerned and the consent of Congress, an interstate compact comes into operation, it has the same effect as a treaty between sovereign powers. Boundaries established by such compacts become binding upon all citizens of the signatory states and are conclusive as to their rights.2290 Private rights may be affected by agreements for the equitable apportionment of the water of an interstate stream, without a judicial determination of existing rights.2291 Valid interstate compacts are within the protection of the Contract Clause,2292 and a “sue and be sued” provision therein operates as a waiver of immunity from suit in federal courts otherwise afforded by the Eleventh Amendment.2293 The Supreme Court in the exercise of its original jurisdiction may enforce interstate compacts following principles of general contract law.2294 Congress also has authority to compel compliance with such compacts.2295 Nor may a state read herself out of a compact which she has ratified and to which Congress has consented by pleading that under the state’s constitution as interpreted by the highest state court she had lacked power to enter into such an agreement and was without power to meet certain obligations thereunder. The final construction of the state constitution in such a case rests with the Supreme Court.2296

Footnotes

2257
Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. ___, No. 08–310, slip op. at 3, 4 (2009). [Back to text]
2258
Clyde Mallory Lines v. Alabama, 296 U.S. 261, 265 (1935); Cannon v. City of New Orleans, 87 U.S. (20 Wall.) 577, 581 (1874); Transportation Co. v. Wheeling, 99 U.S. 273, 283 (1879); Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. ___, No. 08–310 (2009). [Back to text]
2259
Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. ___, No. 08–310, slip op. at 6 (2009) (citation omitted). [Back to text]
2260
Packet Co. v. Keokuk, 95 U.S. 80 (1877); Transportation Co. v. Parkersburg, 107 U.S. 691 (1883); Ouachita Packet Co. v. Aiken, 121 U.S. 444 (1887). [Back to text]
2261
Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 314 (1851); Ex parte McNiel, 80 U.S. (13 Wall.) 236 (1872); Inman Steamship Co. v. Tinker, 94 U.S. 238, 243 (1877); Packet Co. v. St. Louis, 100 U.S. 423 (1880); City of Vicksburg v. Tobin, 100 U.S. 430 (1880); Packet Co. v. Catlettsburg, 105 U.S. 559 (1882). [Back to text]
2262
Huse v. Glover, 119 U.S. 543, 549 (1886). [Back to text]
2263
Steamship Co. v. Portwardens, 73 U.S. (6 Wall.) 31 (1867). [Back to text]
2264
Peete v. Morgan, 86 U.S. (19 Wall.) 581 (1874). [Back to text]
2265
Morgan v. Louisiana, 118 U.S. 455, 462 (1886). [Back to text]
2266
Wiggins Ferry Co. v. City of East St. Louis, 107 U.S. 365 (1883). See also Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 212 (1885); Philadelphia Steamship Co. v. Pennsylvania, 122 U.S. 326, 338 (1887); Osborne v. City of Mobile, 83 U.S. (16 Wall.) 479, 481 (1873). [Back to text]
2267
79 U.S. (12 Wall.) 204, 217 (1871). [Back to text]
2268
Luther v. Borden, 48 U.S. (7 How.) 1, 45 (1849). [Back to text]
2269
Presser v. Illinois, 116 U.S. 252 (1886). [Back to text]
2270
Poole v. Fleeger, 36 U.S. (11 Pet.) 185, 209 (1837). [Back to text]
2271
Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 104 (1938). [Back to text]
2272
Frankfurter and Landis, The Compact Clause of the Constitution: A Study in Interstate Adjustments, 34 YALE L.J. 685, 691 (1925). [Back to text]
2273
Article IX. [Back to text]
2274
Article VI. [Back to text]
2275
39 U.S. (14 Pet.) 540 (1840). [Back to text]
2276
39 U.S. at 571, 572. [Back to text]
2277
148 U.S. 503, 518 (1893). See also Stearns v. Minnesota, 179 U.S. 223, 244 (1900). [Back to text]
2278
United States Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452 (1978). See also New Hampshire v. Maine, 426 U.S. 363 (1976). [Back to text]
2279
Frankfurter and Landis, The Compact Clause of the Constitution: A Study in Interstate Adjustments, 34 YALE L.J. 685 (1925); F. ZIMMERMAN AND M. WENDELL, INTERSTATE COMPACTS SINCE 1925 (1951); F. ZIMMERMAN AND M. WENDELL, THE LAW AND USE OF INTERSTATE COMPACTS (1961). [Back to text]
2280
48 Stat. 909 (1934). [Back to text]
2281
F. ZIMMERMAN AND M. WENDELL, INTERSTATE COMPACTS SINCE 1925 91 (1951). [Back to text]
2282
7 U.S.C. § 515; 15 U.S.C. § 717j; 16 U.S.C. § 552; 33 U.S.C. §§ 11, 567–567b. [Back to text]
2283
Green v. Biddle, 21 U.S. (8 Wheat.) 1, 85 (1823). [Back to text]
2284
Virginia v. Tennessee, 148 U.S. 503 (1893). [Back to text]
2285
Virginia v. West Virginia, 78 U.S. (11 Wall.) 39 (1871). [Back to text]
2286
Wharton v. Wise, 153 U.S. 155, 173 (1894). [Back to text]
2287
James v. Dravo Contracting Co., 302 U.S. 134 (1937). See also Arizona v. California, 292 U.S. 341, 345 (1934). When it approved the New York-New Jersey Waterfront Compact, 67 Stat. 541, Congress, for the first time, expressly gave its consent to the subsequent adoption of implementing legislation by the participating states. DeVeau v. Braisted, 363 U.S. 144, 145 (1960). [Back to text]
2288
Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 433 (1856). [Back to text]
2289
St. Louis & S.F. Ry. v. James, 161 U.S. 545, 562 (1896). [Back to text]
2290
Poole v. Fleeger, 36 U.S. (11 Pet.) 185, 209 (1837); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 725 (1838). [Back to text]
2291
Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 104, 106 (1938). [Back to text]
2292
Green v. Biddle, 21 U.S. (8 Wheat.) 1, 13 (1823); Virginia v. West Virginia, 246 U.S. 565 (1918). See also Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518, 566 (1852); Olin v. Kitzmiller, 259 U.S. 260 (1922). [Back to text]
2293
Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959). [Back to text]
2294
Texas v. New Mexico, 482 U.S. 124 (1987). If the compact makes no provision for resolving impasse, then the Court may exercise its jurisdiction to apportion waters of interstate streams. In doing so, however, the Court will not rewrite the compact by ordering appointment of a third voting commissioner to serve as a tie-breaker; rather, the Court will attempt to apply the compact to the extent that its provisions govern the controversy. Texas v. New Mexico, 462 U.S. 554 (1983). [Back to text]
2295
Virginia v. West Virginia, 246 U.S. 565, 601 (1918). [Back to text]
2296
Dyer v. Sims, 341 U.S. 22 (1951). [Back to text]